Law Commons^™

Aveux Incités Par Les Officiers Chargés De L’Application De La Loi, L’Expérience Des Etats-Unis, Paul Marcus

Faculty Publications

No abstract provided.

The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck

Faculty Publications

This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.

The Right Mix, Richard C. Reuben

Faculty Publications

This edition of Dispute Resolution Magazine explores several aspects of the problem. It begins with a debate between Jean Sternlight and Theodore 0. Rogers over the propriety of mandatory predispute arbitration processes in the consumer and employment contexts, followed by a proposal by Terry Trantina for a "constructive compromise" regarding the general validity of arbitration agreements in contracts of adhesion.

This trio of essays is followed by articles on two major arbitration reform efforts. The first, by Thomas J. Stipanowich and J. Clark Kelso, discusses the rise of protocols and other industry standards intended to bring fairness to the arbitratica …

The Value Of Narrative In Legal Scholarship And Teaching, Jean C. Love

Faculty Publications

Storytelling-particularly storytelling written from an "outsider's" perspective-is a new form of legal writing that appears with increasing frequency on the pages of law reviews and specialized legal journals. At the same time, critics are questioning whether storytelling deserves to be classified as a form of legal scholarship. Perhaps storytellers are to be regarded as talented and creative writers, but do they truly deserve to be called legal scholars? At first, the debate was local, arising in the context of the deliberations of appointments committees and tenure committees. Now the debate is national, and it is being conducted on the pages …

Fiduciary Duties Of Officers And Directors Of Distressed Corporations, Royce De R. Barondes

Faculty Publications

This Article argues that this widely-accepted premise for analyzing the incentives created by various alternative structures of federal bankruptcy law is suspect.

Justice Blackmun, Franz Kafka, And Capital Punishment, Martha Dragich

Faculty Publications

The Article discusses the problem of judging death penalty cases, comparing Justice Blackmun's death penalty jurisprudence to the struggle of a character in Kafka's story. It focuses on three critical moments in the decisional process--hesitation, decision, and escape--and assesses Justice Blackmun's performance at each step. It concludes that although Justice Blackmun's views remained consistent throughout his judicial career, his death penalty legacy is equivocal, and in some important respects, unsatisfying.

Of Sinking And Escalating: A (Somewhat) New Look At Stare Decisis, Rafael Gely

Faculty Publications

This article explores the concept of stare decisis from the escalation of commitment perspective. I argue that the theory of escalation of commitment provides a powerful tool that can be used in our understanding of the application of stare decisis . The literature on the use of precedent is extensive; however, this Article develops a new way of looking at case law development and stare decisis . In particular, the Article contemplates stare decisis as a decision-making process and then considers the academic literature in order that we may gain some insight into that process.

Of Communists And Anti-Abortion Protestors: The Consequences Of Falling Into The Theoretical Abyss, Christina E. Wells

Faculty Publications

Part I of this article briefly reviews the legal and social context of Dennis and Yates. Parts II and III similarly review Madsen and Schenck in order to show potential parallels to the earlier communist decisions. Part IV further examines both Madsen and Schenck, demonstrating that, from a doctrinal standpoint, they are far removed from the earlier communist cases. Finally, Part V explains how the Court in Madsen and Schenck actually contributed to misconceptions or manipulation of its opinions. Specifically, Part V examines the Madsen and Schenck Courts' approaches to three of the more difficult doctrinal issues facing them--prior restraint, …

Mortgage Drafting: Lessons From The Restatement Of Mortgages, Dale A. Whitman

Faculty Publications

The American Law Institute's adoption of the Restatement (Third) of Property: Mortgages may have significant impact on the negotiation and drafting of mortgages. Rather than merely reciting the prevailing case law, the Restatement proposes approaches the American Law Institute believes are desirable as a matter of sound policy. This Article highlights key areas in which the new Restatement may affect mortgage drafting and suggests useful techniques for mortgage drafters.

Book Review Of Forced Justice: School Desegregation And The Law And Race Relations Litigation In An Age Of Complexity, Davison M. Douglas

Faculty Publications

No abstract provided.

The Challenge Of Prosecuting Organized Crime In The United States: Procedural Issues, Paul Marcus

Faculty Publications

No abstract provided.

Commercial Codification As Negotiation, Peter A. Alces, David Frisch

Faculty Publications

No abstract provided.

Researching Cases On The Web, Douglas E. Abrams

Faculty Publications

No abstract provided.

Tribute To Professor Richard B. Tyler, William B. Fisch

Faculty Publications

Tribute to Professor Richard B. Tyler

Understanding Congressional Reform: Lessons From The Seventies, Rafael Gely, Asghar Zardkoohi

Faculty Publications

The purpose of this article is to examine voting behavior of representatives when faced with dual constraints (constituents back home and the leadership) as compared to one constraint (constituents back home). An ambitious goal of the study would have been to examine the effects of both sets of reforms. However, there are two reasons for not using the 1995 reforms in our empirical examinations. First, not enough time has passed to fully observe the effect of term limits on voting behavior. Second, and more importantly, the leadership, whose power it was to impose a constraint on a representative's promotional opportunities, …

Where's Dolan? Exactions Law In 1998, Jonathan M. Davidson, Ronald H. Rosenberg, Michael C. Spata

Faculty Publications

No abstract provided.

Coping With "Loss": A Re-Examination Of Sentencing Federal Economic Crimes Under The Guidelines, Frank O. Bowman Iii

Faculty Publications

This Article has three objectives. First, it attempts to rethink the sentencing of federal economic criminals in light of the basic purposes of sentencing and of the Guidelines' particular structure and objectives. Second, it examines the deficiencies in the current sentencing guidelines regarding theft, fraud, and other economic crimes, and the problem areas in the case law construing those guidelines. Third, it proposes and analyzes a consolidated guideline, together with accompanying application notes, for sentencing virtually all theft and fraud cases (a draft of which follows the text of this Article as Appendix A).

Adoption Of Children In Missouri, Mary M. Beck

Faculty Publications

The purpose of this Article is to investigate the effect of Missouri law on adoption and to determine whether its provisions adequately protect the parties to adoption and whether its degree of clarity properly forestalls litigation.

Failing Faith In Litigation? A Survey Of Business Lawyers' And Executives' Opinions, John M. Lande

Faculty Publications

To provide a more systematic assessment of contemporary faith in litigation, this article looks at a particular context-- business litigation--and analyzes the opinions of three groups of respondents: lawyers in private law firms who do commercial litigation (“outside counsel”), lawyers employed in business firms who do some litigation (“inside counsel”), and nonlawyer executives in business firms (“executives”). These groups have the greatest exposure to litigation in the corporate setting; furthermore, because they play powerful roles in our political, economic, and social life as well as the legal system, their opinions influence public opinion more generally.

Writing In The Legal Academy: A Dangerous Supplement, Lisa A. Eichhorn

Faculty Publications

This article explores the relationship of writing and speech in the legal academy through the lens of an ancient, embedded hierarchy that favors speech over writing. The article borrows the philosophical notion of the "dangerous supplement" to describe the role of writing in this hierarchy and argues that law schools have long seen only one aspect of this role, viewing writing as a "dangerous" curricular supplement, but failing to see why it is necessary to the existence of the remainder of the curriculum. This article examines the lurking distrust that surrounds writing in the legal academy. Part I of this …

Quo Vadis, Posadas?, William W. Van Alstyne

Faculty Publications

No abstract provided.

Victims' Rights And The Constitution: Moving From Guaranteeing Participatory Rights To Benefiting The Prosecution, Robert P. Mosteller

Faculty Publications

No abstract provided.

Hang On To Your Hats! Terry Into The Twenty-First Century, Eric L. Muller

Faculty Publications

No abstract provided.

Chancellor Kent And The Search For The Elements Of Impeachable Offenses, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Labor Law Obstacles To The Collective Negotiation And Implementation Of Employee Stock Ownership Plans: A Response To Henry Hansmann And Other "Survivalists", Jeffrey M. Hirsch

Faculty Publications

No abstract provided.

“Why Infer”? What The New Institutional Economics Has To Say About Law-Supplied Default Rules, Juliet P. Kostritsky

Faculty Publications

A central question of contract law remains: when should the law supply a term not expressly agreed to? Many scholars have addressed that question, yet the justification for law-supplied terms often remains unconvincing. Because many proposals to supply terms do not incorporate a comparative framework for assessing the costs and benefits of legal interventions, they are incompletely justified. This Article proposes that a comparative net benefit approach (developed in institutional economics to explain private arrangements) be adapted and expanded to resolve the fundamental issues of legal intervention. The Article uses that framework to critique the hypothetical bargain and Ayres/Gertner penalty …

A Content Analysis Of Judicial Decision-Making: How Judges Use The Primary Caretaker Standard To Make A Custody Determination, Kathryn Mercer

Faculty Publications

This article expands upon Professor Mercer's previous discussion of the efficacy of the primary caretaker standard in West Virginia.

American Indian Law Meets The Internal Revenue Code: Warbus V. Commissioner, Erik M. Jensen

Faculty Publications

This article examines a 1998 Tax Court decision, Warbus v. Commissioner, that has implications for both American Indian law and federal tax law. Section 7873 of the Internal Revenue Code exempts from taxation amounts derived by American Indian tribal members from fishing-rights related activit[ies] of their tribes. Taxpayer Warbus claimed that discharge of indebtedness income from the foreclosure of his fishing boat qualified for the exclusion; the Tax Court said no. The author argues that Warbus was wrongly decided for two reasons: the court failed to take account of basic principles of American Indian law, and the court misapplied the …

Double Jeopardy: “Twice In Jeopardy”, Paul C. Giannelli

Faculty Publications

No abstract provided.

Double Jeopardy: “Same Offense”, Paul C. Giannelli

Faculty Publications

No abstract provided.