Law Commons^™

The Fourteenth Rule, R. Lawrence Dessem

Faculty Publications

Thirteen Rules for Taking Law Exams is vintage Phillips perhaps most significantly because of its wit. Rather than writing his essay in a straightforward manner, Professor Phillips satirized the common mistakes that are so prevalent in law school examination answers. Professor Phillips' first rule (“never spell correctly any word which is central to the content of the course”) is, in part, justified because such errors “weaken the teacher's resistance so that he will more readily accept greater errors to come.

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande

Faculty Publications

To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number …

Democracy And Dispute Resolution: Systems Design And The New Workplace, Richard C. Reuben

Faculty Publications

There has been growing discussion in law reviews and business journals about the so-called new workplace, which is distinguished from the old, in part, by greater employee mobility and job flexibility. This article extends that discussion by exploring the implications of the new workplace for the design of dispute resolution systems. In particular, it argues that the structure and values of the new workplace correspond to the essential values of democratic governance, and that dispute resolution should be integrated into the new workplace in a way that enhances rather than diminishes these core democratic values. As I have articulated in …

Core Principles For Effective Banking Supervision: An Enforceable International Financial Standard?, Duncan E. Alford

Faculty Publications

The Basel Committee on Banking Supervision serves as an international forum to discuss international bank supervision issues. Because of the gravity and frequency of banking crises since the demise of the Bretton Woods System in the early 1970s, international financial standards have emerged as a method to minimize these crises. In 1998, the Basel Committee issued a comprehensive standard on bank super vision that built upon its work over the previous two and a half decades. In this Article, the author analyzes this comprehensive standard the Core Principles for Effective Banking Supervision-and assesses its implementation in the European Union, the …

Ethical And Legal Standards In Social Work, Frederic G. Reamer

Faculty Publications

Social workers frequently encounter circumstances involving ethical and legal issues. In many instances, relevant ethical and legal standards complement each other; however, in some circumstances, ethical and legal standards conflict. This article provides a comprehensive overview of the relationship between U.S. ethical and legal standards in social work. The author presents a conceptually based typology of 4 types of relationships between legal and ethical standards. Case examples are included. The author concludes with a decision-making framework designed to enhance social workers' constructive management of difficult decisions involving ethical and legal standards.

The Limited Path Dependency Of Precedent, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Moderating Politics In Post-Conflict States: An Examination Of Bosnia And Herzegovina, Angela M. Banks

Faculty Publications

The individuals who negotiated the peace agreement that ended the war in Bosnia and Herzegovina considered ethnicity to be the most salient division within Bosnian society. Consequently they organized Bosnia's political structure around ethnic representation. While it is doubtful that peace in Bosnia would have been possible without guarantees for ethnic-based political representation, such guarantees have proven insufficient for building a functioning, stable, and cohesive state. This article analyzes the role that Bosnia's political framework, which focuses exclusively on ethnic representation, has played in impeding the development of a significant cadre of moderate political actors and in hindering the success …

The Liberal State's Response To Religious Visions Of Education, James G. Dwyer

Faculty Publications

No abstract provided.

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Faculty Publications

No abstract provided.

Should Liability Play A Role In The Social Control Of Biobanks?, Larry I. Palmer

Faculty Publications

No abstract provided.

Policymaking By The Administrative Judiciary, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …

The Failure Of The Federal Sentencing System: A Structural Analysis, Frank O. Bowman Iii

Faculty Publications

For most of the last decade, I numbered myself among the supporters of the Federal Sentencing Guidelines and wrote extensively in their defense, while chronicling their defects. In the past year, I have reluctantly concluded that the federal sentencing guidelines system has failed. This Article explains the Guidelines' failure. The Sentencing Reform Act was intended to distribute the power to make sentencing policy and rules and to control individual sentencing outcomes among a range of national and local actors - the U.S. Sentencing Commission, Congress, the federal appellate courts, and the Department of Justice at the national level, and district …

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Faculty Publications

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay’s request for appointed counsel. Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Reopening The Emmett Till Case: Lessons And Challenges For Critical Race Practice, Margaret M. Russell

Faculty Publications

As part of the symposium panel on "Re- Trying Racial Injustices," I devote this Essay to an expansion of themes addressed in my earlier work on the reopening of civil rights era prosecutions. I draw upon this work, as well as upon the insights of my co-panelists Anthony Alfieri and Sherrilyn Ifill, to examine the reopening of the Emmett Till case and its critical race practice possibilities.

In this Essay, I consider other aspects of these "cleansing moments." Are they illusory? Do they provide a misleading sense of closure at the expense of the ongoing hard work of racial justice …

Universal Service: Problems, Solutions, And Responsive Policies, Allen S. Hammond Iv

Faculty Publications

Affordable access to telecommunications networks is extremely important to all Americans. The federal universal service policy is critical to ensuring affordable access for low income Americans and those living in rural and high cost areas, and on tribal lands. Consequently the nation’s commitment to preserving universal service has been longstanding and continues to this day.

While reform of the telecommunications universal service policy is clearly warranted, ignoring the impact of IP-enabled intermodal competition is counterproductive. In an era of IP-enabled convergence, ultimately, proposals and policies that solely focus on one technology platform will be less successful. Too often they will …

The Sutherland Report And Dispute Settlement, Mark L. Movsesian

Faculty Publications

Ten years after the organization's founding, an air of disappointment surrounds the WTO. The great promise of a global trade regime, dedicated to the principle of comparative advantage, seems to have stalled. The Doha Development Round, launched in 2001 in an attempt to redeem the disastrous Seattle Ministerial Conference of 1999, has been stymied by familiar disputes between North and South, mostly with respect to agricultural issues, but with respect to nonagricultural market access and services as well. Frustrated by impasses at the WTO, members have increasingly bypassed the organization in favor of discrete "preferential trade agreements", or PTAs, that …

The Capital Gains "Sieve" And The "Farce" Of Progressivity 1921-1986, John W. Lee

Faculty Publications

No abstract provided.

On Discovering Doctrine: "Justice" In Contract Agreement, Peter A. Alces

Faculty Publications

No abstract provided.

The Birth Of The Authornym: Authorship, Pseudonymity, And Trademark Law, Laura A. Heymann

Faculty Publications

Consumers in the marketplace of ideas are well acquainted with one aspect of the Foucauldian concept of the "author function": the way in which an author's name serves to organize both producer inputs-the various works the author wishes to have associated with his name-and consumer inputs-the readers' interpretive reactions to any particular body of work. Indeed, choosing to write under a pseudonym or under one's true name is the way in which an author exerts control over this function by grouping certain works (for example, scholarly pieces) under one name and other works (for example, mystery novels) under a different …

Profile: Judge George H. Aldrich, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Property, Aspen, And Refusals To Deal, Alan J. Meese

Faculty Publications

No abstract provided.

Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman

Faculty Publications

One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …

Merit Vs. Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The First Amendment's Biggest Threat, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Immigration And The Allure Of Inclusion, Ediberto Román

Faculty Publications

Essentially, all immigrant stories concern labels and their consequences, including the fiction of the legal and illegal "alien. ' These labels in turn are created by immigration regimes that have the effect of establishing identities of both welcomed and unwelcome newcomers into a society. These fictions or labels occur within what can be described as the legal fiction of the nation-state. In many respects, all immigrant debates and accounts are tales of inclusion and membership within legal frameworks that decide which groups of people are deemed worthy of eventual formal membership within a political structure. Indeed, the label of "alien" …

The Unique Benefits Of Treating Personal Goodwill As Property In Corporate Acquisitions, Darian M. Ibrahim

Faculty Publications

Corporate acquisition talks may not get far if buyer and seller disagree over transaction structure, which can have significant after-tax effects. But the parties may have overlooked an item that, due to its potential tax treatment, could be the key to facilitating the acquisition. That item is the selling shareholder's "personal goodwill."

Personal goodwill exists when the shareholder's reputation, expertise, or contacts gives the corporation its intrinsic value. It is most likely to be found in closely held businesses, especially those that are technical, specialized, orprofessional in nature or have few customers and suppliers. If personal goodwill is treated as …

Cheers, Profanity, And Free Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

Sending The Right Signals: Using Rent-Seeking Theory To Analyze The Cuban Central Bank, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Tort, Race, And The Value Of Injury, 1900-1949, Jennifer Wriggins

Faculty Publications

The Article begins a systematic examination of race and torts. Despite the barriers posed by racist exclusionary structures and violence, many African-Americans sued for and received compensation for personal injuries in the first half of the twentieth century, winning verdicts and appellate decisions in all regions. However, the fact that black plaintiffs sometimes won does not mean that they were treated equally with whites. Examples from all stages of the litigation process demonstrate that race and racism have been significant in devaluing injuries to black plaintiffs. The process of racial categorization was a significant mechanism in devaluing black plaintiffs’ claims. …