Law Commons^™

The Barry Bonds Baseball Case - An Empirical Approach - Is Fleeting Possession Five Tenths Of The Ball?, Peter Adomeit

Faculty Scholarship

Mr. Barry Bonds hit his record seventy-third home run on October 7, 2001. Mr. Alex Popov was smart enough to be in the standing room only area at San Francisco's Pacific Bell Park behind the right field bleachers known as the Arcade, where Mr. Bonds had hit many of his home runs. Mr. Popov was lucky enough to be located almost precisely where the ball was hit, needing only to take one step back. He also had brought a softball glove to the park, as well as a small earbud radio on which he could listen to the play-by-play of …

The Dangers Of The Ivory Tower: The Obligation Of Law Professors To Engage In The Practice Of Law, Amy B. Cohen

Faculty Scholarship

This Article considers whether law professors have a professional obligation to keep current with the practice of law by actually engaging in such practice on some limited or occasional basis.

The Author proposes that, at a minimum, law professors should be encouraged, if not required, to stay connected to the world of practice. Law professors could spend a sabbatical in practice, engage in some outside work while teaching, or simply observe, study, or communicate regularly with those who are actively engaged in the practice of law. If seen as a form of class preparation or as an nspiration for scholarship, …

Bioethical Malpractice: Risk And Responsibility In Human Research, Barbara A. Noah

Faculty Scholarship

This Article provides an overview of Institutional Review Board (IRB) operations, reviews the sources of regulatory guidance, and examines the weaknesses of the existing system for the protection of human research subjects. It then discusses the scant case law relating to IRB negligence in the protection of human research subjects and explores some hypothetical circumstances under which it may be appropriate to hold a board accountable for injuries to clinical trial participants. Finally, this Article considers the potential consequences of expanded IRB liability, concluding that tort lawsometimes may serve an important function as a catalyst to regulatory reform when professional …

Radical Tax Reform, Municipal Finance, And The Conservative Agenda, Eric J. Gouvin

Faculty Scholarship

Proponents of a consumption tax system to replace the federal income tax typically couch their support for radical tax reform in the language of traditional tax policy goals. They claim that their reform plans promote the goals of simplicity, economic efficiency, stability, and equity. This Article examines how well the proposed tax reforms will achieve those goals in the context of their anticipated impact on state and local finance. The effects on state and local governments of a flattened-rate income tax, flat tax, or a broad federal consumption tax could be enormous and devastating. The Article finds that all of …

Introduction: What Does Oakley Tell Us About The Failures Of Constitutional Decision-Making?, Taylor Flynn

Faculty Scholarship

The Wisconsin Supreme Court's decision in State v. Oakley, in which the court upheld a probation order prohibiting Mr. Oakley from fathering additional children until he could support them, is a compelling example of a troubling flaw in our constitutional jurisprudence. Absent the countervailing check perhaps provided by the doctrine of unconstitutional conditions, each path of doctrinal analysis, considered separately, arguably leads to the conclusion that the probation order is valid. This is so even though a number of institutional, structural, and process-based considerations converge to render the order's constitutionality highly suspect. The prevailing doctrinal approach is to disaggregate the …

A Sturdy Rogue, Bruce K. Miller

Faculty Scholarship

The Author discusses the Poor Laws in the times of the Tudor monarchs, known to us at the Elizabethan Poor Laws. The Author discusses the Oakley case which shows the durability and power of our Elizabethan heritage in shaping a special law of poor families; the very venerability of this heritage suggests that it must play an important social role.

Politicizing The End Of Life: Lessons From The Schiavo Controversy, Barbara A. Noah

Faculty Scholarship

The case of Theresa Marie Schiavo raises challenging legal and ethical issues, although the events of the case are not entirely novel. It is a well-settled principle under Florida law that individuals have a right to refuse life-sustaining medical treatment. After years of litigation, numerous courts have confirmed that removal of life support is legally appropriate under the facts of this case. Nevertheless, six days after Theresa's feeding tube was removed, the Florida legislature
opted to intervene in the final judicial decision by granting the Governor the authority to overrule the court's decision and to order the tube reinserted. These …

Uniform Real Property Electronic Recording Act (Last Revised Or Amended In 2005), Arthur Gaudio , Reporter

Faculty Scholarship

The status of electronic information technology has progressed rapidly in recent years. Innovations in software, hardware, communications technology and security protocols have made it technically feasible to create, sign and transmit real estate transactions electronically. However, approaching the end of the 20^th Century, various state and federal laws limited the enforceability of electronic documents. In response, the Uniform Electronic Transactions Act (UETA) was approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1999. As of October 1, 2004, UETA had been adopted in 46 states, the District of Columbia, and the U.S. Virgin Islands. The …

Toward A More Perfect Union: The Road To Marriage Equality For Same-Sex Couples, Jennifer L. Levi

Faculty Scholarship

The Author believes that civil unions have become synonymous with inequality. In this posture, the term inequality should be descriptive rather than subjective. She argues that civil unions relegate gay and lesbian couples to second-class status. However characterized or defined, civil unions are not marriages. Those two statuses are not equivalent; they are not equal. Within that framework, in order for any one person to decide where he or she stands on the issue of whether gay and lesbian couples should be entitled to marriage, civil unions, something else, or nothing, he or she must first understand why marriage matters …

The Equal Access Act: Still Controversial After All These Years, Leora Harpaz

Faculty Scholarship

Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in …

The Implementation Of Fda Determinations In Litigation - Why Do We Defer To The Pto But Not To The Fda?, William G. Childs

Faculty Scholarship

This Article examines the possible inequity of the treatment of licensees' rights in tort litigation in comparison to patent rights in patent litigation. In particular, this Article presents the presumptions afforded from issued patents as a valid model for the proper treatment of FDA approval in litigation. Presently, most academic discussion proposes either preclusion of tort claims or leaving the system more or less as it stands. This Article, on the other hand, proposes a middle ground.

This Article begins by examining the differences between the USPTO and the FDA. In particular, the quantity and quality of the review provided …

The Equal Access Act: Still Controversial After All These Years, Leora Harpaz

Faculty Scholarship

Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in …

Probation Restrictions Impacting The Right To Procreate: The Oakley Error, Jennifer L. Levi

Faculty Scholarship

In State v. Oakley, the all-male four-justice majority held that a probation condition restricting David Oakley's right to have children passed constitutional muster. This Article discusses this question of the appropriate approach to evaluating the constitutionality of probation conditions. The Wisconsin Supreme Court's approach is compared to that of other courts in cases involving, in some way, decisions limiting a probationer's right to have children. The Author concludes that regardless of what constitutional standard or degree of scrutiny courts apply, cases can (and do) go both ways with respect to upholding or striking down probation restrictions on fundamental rights. However, …

Learning Business Law By Doing It: Real Transactions In Law School Clinics, Eric J. Gouvin

Faculty Scholarship

This Article discusses the business clinic movement and how legal educators view them as being an excellent vehicle for inculcating the values and practices that business lawyers hold dear. Business clinics may help students better appreciate the challenges of business lawyering, which they sometimes misunderstand as merely a forms practice. The Author believes that by putting students in the middle of real transactions, they gain a deeper understanding of the subtleties of making a transaction come together.