Law Commons^™

A Second Look At The Zero Basis Hoax, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Munchausen Syndrome By Proxy: Broadening The Scope Of Child Abuse, Michael T. Flannery

Faculty Scholarship

No abstract provided.

Assertive Modesty: An Economics Of Intangibles, Wendy J. Gordon

Faculty Scholarship

At the center of our Symposium stand two papers: "A Manifesto Concerning the Legal Protection of Computer Programs" (Manifesto) and "Legal Hybrids: Between the Patent and Copyright Paradigms" (Legal Hybrids). Both are stimulating. Both are lengthy. As a result, my primary role is that of a guide: this Comment will summarize the authors' proposals, analyze certain aspects in greater detail, and outline their explicit and implicit methodologies. Part I of the Comment describes the papers' positions and methodologies. Part II highlights some of the papers' many contributions to the literature, and offers some other evaluative observations.

An Economic Theory Of The Duty To Bargain, Keith N. Hylton

Faculty Scholarship

Professor Hylton's paper presents an economic theory of the duty to bargain in good faith under the National Labor Relations Act. The duty to bargain alters bargaining incentives in two ways. First, it imposes a duty to disclose relevant information on the informationally advantaged party. Second, by conditioning the right to act unilaterally on satisfaction of bargaining obligations, the duty to bargain brings about a partial reallocation of the parties' entitlements. This partial reallocation increases the potential gains from honest contracting relative to the benefits of exploiting an informational advantage and thus alters incentives in a way that makes honest …

Feminist Lawmaking And Historical Consciousness: Bringing The Past Into The Future, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Property Law: 1994 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

From Star To Supernova To Dark, Cold Neutron Star: The Early Life, The Explosion And The Collapse Of Arbitration, Michael Hunter Schwartz

Faculty Scholarship

No abstract provided.

Margaret Somerville: A Refreshing Challenge, George J. Annas

Faculty Scholarship

Health law is applied law, the entire body of law applied to the promotion of human health and the delivery of medical care. It is accurate, if not flattering, to observe that the vast majority of health law teachers and practitioners are content to take their "applied" discipline as they find it, and spend most of their time and energy describing the intersections of law, medicine, and health care as they occur in the world around us. Margaret Somerville is a refreshing challenge to health law's self-satisfied and confining activities, and it has been invigorating to be her friend and …

We The Exceptional American People, James E. Fleming

Faculty Scholarship

I. INTRODUCTION: "AMERICAN EXCEPTIONALISM" There is an academic movement afoot-one with a long historical pedigree-to attribute the vitality of the American constitutional order to "American exceptionalism." The most prominent representative of this school of thought is Bruce Ackerman, whose We the People opens with a jeremiad against the "Europeanization" of American constitutional theory and urges us as Americans to "look inward" to rediscover our distinctive patterns, practices, and ideals.2 He maps the terrain of theory as being divided into monists ("Anglophiles"), rights foundationalists ("Germanophiles"), and dualists (red-blooded Americans).3 Only dualists have the "strength" to declare our American independence from British …

Testing Penry And Its Progeny , Deborah W. Denno

Faculty Scholarship

In Penry v. Lynaugh, the United States Supreme Court held that the Texas death penalty statute was applied unconstitutionally because the trial court gave no instructions allowing the jury to “consider and give effect to” the defendant's mitigating evidence of organic brain damage, moderate retardation, and disadvantaged background. The Court considered these mitigating factors relevant because of society's steadfast belief in the lesser culpability of defendants whose criminal acts are due to a disadvantaged background, or to emotional and mental disorders. The jury must have full consideration of such evidence in order to give its “reasoned moral response” to the …

Mediating Life And Death Decisions, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Hearing Women Not Being Heard: On Carol Gilligan's Getting Civilized And The Complexity Of Voice, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Something Old, Something New: The Challenge Of Tuberculosis Control In The Age Of Aids, Karen H. Rothenberg, Elizabeth C. Lovoy

Faculty Scholarship

No abstract provided.

Enforcing Coasian Bribes For Non-Price Benefits: A New Role For Restitution, Wendy J. Gordon, Tamar Frankel

Faculty Scholarship

In Boomer v. Muir,¹ a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them.²

In many states, a supplier in the subcontractor's position has among her options the choice of "rescission and restitution."³ That means the supplier may rescind the contract and seek, under the label of "restitution", payment set at market price (or at her cost)⁴ for …

A World That Won't Stand Still: Enterprise Liability By Private Contract, William M. Sage, James M. Jorling

Faculty Scholarship

The purpose of this article is to help health care providers and insurers create such an approach by explaining the benefits and risks of voluntarily reassigning liability for medical injury along an enterprise liability model, and by outlining the legal and contractual elements that are required to do so successfully.

"Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel

Faculty Scholarship

Presumptions and burdens of proof are used, among other purposes, to maintain legal stability and at the same time effect change. By imposing the burden of proof on the party asserting a certain outcome, courts can calibrate burdens of proof and substantive rules until experience points to rule retention or amendment. As agents of change, presumptions and burdens of proof are far more flexible and less brittle than rules.¹

This Article tells the story of presumptions and burdens of proof in litigation between corporate shareholders and managements. This litigation is replete with volatile presumptions and innovative burdens of proof, …

Radical Resisters, David B. Lyons

Faculty Scholarship

In the early 1840s Henry David Thoreau stopped paying the Massachusetts poll tax. When pressed for payment in 1846, he invited arrest and went to jail. He had wanted to protest his state's complicity in the federal government's support of chattel slavery and its policies towards Native Americans. By the time he delivered his lecture on civil disobedience, in 1848, events had produced another cause. Thoreau also condemned this country's expansionist war against Mexico.

Gestational Surrogacy And The Health Care Provider, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

The Maryland Health Care Decisions Act: Achieving The Right Balance?, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Understanding The Racial Discourse Of Justice Rehnquist, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Forward: Ed Sparer's Legacy, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Working And Poor: The Increasingly Popular Practice Of Excluding Disabled Employees From Health Care Coverage, Maria O'Brien

Faculty Scholarship

One might think, since passage of the Americans With Disabilities Act of 1990 (ADA),' that the employment story for disabled employees or would-be disabled employees was cheerful, or at least improving. This may be true in so far as obtaining and retaining employment is concerned;' however, the ADA, because it permits employers and third-party insurers to continue to utilize traditional risk management techniques, has resulted in reduced or (in some cases) non-existent employee benefits for the disabled. At the same time, more and more employers are opting to self-insure under the Employee Retirement Income Security Act of 1974 (ERISA),3 in …

Counter-Manifesto: Student-Edited Reviews And The Intellectual Properties Of Scholarship, Wendy J. Gordon

Faculty Scholarship

In the great scheme of things, how important are the problems with law reviews? Jim Lindgren's essay is a bit overheated, even for someone enamored f polemic as a literary form. But he does have a point: if law reviews are going to be published, the task should be done better than it is. That does not mean getting rid of student law reviews. Not even for Jim - but it does require patience and further inquiry into the nature of legal scholarship.

Law, Culture, And Harassment, Anita Bernstein

Faculty Scholarship

No abstract provided.

Heirs Of Leonardo: Cultural Obstacles To Strict Products Liability In Italy, Anita Bernstein, Paul Fanning

Faculty Scholarship

No abstract provided.

Choice Of Law: A Guide For Texas Attorneys, James P. George

Faculty Scholarship

This Article is a follow-up to an earlier article, Choice of Law Outline for Texas Courts, 18 Tex. Tech L.Rev. 785 (1987), which attempted to illustrate the proper Texas choice of law analysis under the then-recently-adopted “most significant relationship test.” The prior Article was intended for Texas judges, and considered only what ought to occur in a Texas state or federal court. This successor Article is for Texas practitioners, but goes beyond the Texas courtroom. It focuses on the choice of law process in Texas state and federal courts, but is broad enough to acquaint the reader with choice of …

Rights And Irresponsibility, Linda C. Mcclain

Faculty Scholarship

There can be little doubt that a marked discontent with rights and "rights talk" is in the air, as are calls for a turn to responsibility and "responsibility talk."' In a broad range of contemporary discourses, rights are juxtaposed against responsibility as if the two were inversely or even perversely related to one another. Indeed, rights are said to license irresponsibility. Academics, politicians, and the popular media claim that Americans increasingly invoke rights talk and shrink from responsibility talk and that as a result America suffers from an explosion of frivolous assertions of rights' and a breakdown of responsible conduct. …

You've Got It Coming -- Winning Discovery Through Effective Motions Practice, David J. Stout

Faculty Scholarship

An effective discovery motion begins with the underlying discovery document and a thoughtful plan for discovery.

This article will begin with a brief overview of the more important substantive legal points relevant to discovery. The materials will then address some of the more recurrent problems encountered by counsel during the course of discovery. Finally, the discussion will examine the timing, form and content of discovery motions.

1993 Amendments To The Federal Rules Of Civil Procedure Effective December 1, 1993, Daid J. Stout

Faculty Scholarship

On December I, 1993 Congress allowed an important series of amendments to the Federal Rules of Civil Procedure to pass into law. The amendments, particularly with regard to discovery, are extensive and you should carefully review the changes.

The discussions of the 1993 amendments consist of two articles. This article addresses the 1993 amendments (Rule 26, 30 - 37, and 16) as they impact the discovery process.

A Sheep In Wolf's Clothing: Territorialism In The Guise Of Interest Analysis In Cooney V. Osgood Machinery, Inc, Aaron Twerski

Faculty Scholarship

No abstract provided.