Law Commons^™

Transcending Equality Theory: A Way Out Of The Maternity And The Workplace Debate, Lucinda M. Finley

Journal Articles

No abstract provided.

The Revised Model Business Corporation Act And Corporate Law Reform In Mississippi: Part One, Wendell H. Holmes

Journal Articles

No abstract provided.

The Freedom Not To Contract, Wendell H. Holmes

Journal Articles

No abstract provided.

Is Proof Of Statistical Significance Relevant?, David H. Kaye

Journal Articles

The classic treatises on evidence note that the court or jury must weigh the evidence, and upon weighing it, determine whether the plaintiff or the defendant prevails. Some courts, however, have indicated that statistical evidence should not be admitted unless it is subjected to a procedure known as 'hypothesis testing.' There are many rather mechanical procedures for performing these tests and a number of judges, attorneys, and law professors have suggested that hypothesis testing provides an objective, scientific means of settling disputed questions on which statistical evidence is brought to bear. Yet, many circumstances arise in which courts or administrators …

Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye

Journal Articles

The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence of any …

The Pitfalls Of Empirical Research: Studying Faculty Publication Studies, David H. Kaye, Ira Mark Ellman

Journal Articles

This article critiques empirical studies by attorneys in the hopes that they will be held to the minimal standards of research competence that are to be found in other academic fields which rely on empirical studies. Because law-trained scholars are notoriously weak at empirical research, this article identifies some of the methodological considerations that should inform empirical research. These fall into four broad categories: (1) problems of conceptualization, (2) problems of measurement, (3) problems of data presentation and analysis, and (4) problems of inference. This article examines all of these considerations in the context of an empirical survey done by …

The Exuberant Pathway To Quixiotic Internationalism: Assessing The Folly Of Mitsubishi, Thomas E. Carbonneau

Journal Articles

The writing on international commercial arbitration often is replete with statements affirming the necessity and advocating the progression of the institution. Indeed, the transnational consensus on commercial arbitration is exceptional - a rare example of viable cohesion in the fragmented arena of international affairs. The unifying spirit of the 1958 New York Arbitration Convention, the uniformity of approach among national courts to the implementation of the Convention, and national legislation supportive of the emerging international consensus on arbitration attest to a willingness to eradicate parochial concerns, to respond to felt needs, and to achieve functional international cooperation.

The United States …

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Journal Articles

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.

Developments In Section Two Of The Sherman Act, Joseph P. Bauer

Journal Articles

The issues raised in this Symposium are of great interest and timeliness. During the 1940s and 1950s, the Supreme Court explored the role of Section 2 of the Sherman Act as an essential element in the antitrust regime. As was true with antitrust generally, courts expanded the reach of Section 2, frequently concluding that the complained-of conduct constituted unlawful monopolization or attempts to monopolize, and approving injunctions forbidding the continuation of exclusionary or predatory practices and orders leading to the breakup of the monopoly itself. However, after the Grinnell decision in 1966, and the Otter Tail case almost a decade …

The Ethics Of Dissent And Friendship In The American Professions, Thomas L. Shaffer

Journal Articles

Professional ethics is commonly understood as a creature of the establishment—the study of what the better doctors and lawyers do and impose on their colleagues. But this traditional notion of ethics conveys a message that professionals need only care for their clients or patients to a certain point whether it is the end of the professional’s expertise, the end of the contract or the end of an assigned task. But this ethical understanding loses the sense of professionals serving a community. This Article dissents from that common understanding of ethics and tells dissenting-professional stories that show professional ethics through the …

The "Natural Law Tradition", John M. Finnis

Journal Articles

This "tradition of natural law theory" has three main features: First, critique and rejection of ethical scepticism, dogmatism and conventionalism; Second, clarification of the methodology of descriptive and explanatory social theories (e.g., political science, economics, jurisprudence .... ); Third, critique and rejection of aggregative conceptions of the right and the just (e.g., consequentialism, utilitarianism, wealth-maximization, "proportionalism"...).

Labor Law Preemption: Procedure And Substance: An Analysis Of International Longshoremen's Association V. Davis, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Int'l Longshoremen's Ass'n v. Davis, 476 U.S. 380 (1986). The author expected the Court to address 2 issues: (1) at what point in a case must the issue of federal preemption be raised?; and (2) to what extent is state law preempted by federal labor law?

The Unity Of Law & Morality: A Refutation Of Legal Positivism (Book Review), John H. Robinson

Journal Articles

Professor Robinson provides a critique of M.J. Detmold’s book, The Unity of Law & Mortality: A Refutation of Legal Positivism. He argues that the book is flawed for failure to present his adversary’s position and for failure to explain the reasons for embracing an ontological perspective towards all ethics. Despite its ambition, the argument does not get off the ground.

The Profession As A Moral Teacher, Thomas L. Shaffer

Journal Articles

Professional ethics is commonly understood as the standards listed in codes. But ethical codes that are removed from one’s character and the practice of the profession are corrupting. Rather, ethics are properly taught through the profession as a moral teacher. This Article argues that professional stories that instruct on real life experiences and one’s character better educate lawyers and doctors on ethical standards. Sound ethical codes in the profession are those which depend on character.

Present At The Creation? A Critical Guide To Weeks V. United States And Its Progeny, Gerard V. Bradley

Journal Articles

The Supreme Court in Weeks v. United States held that upon a pretrial motion for return of property illegally seized, a court must order restitution, even if government is thereby deprived of its use at a subsequent trial. Many have characterized the Court’s decision as being grounded on a principled rather than empirical basis and as supporting the principle of exclusion. This Article critically examines Weeks to gauge the validity of the principled basis theories that Justice Day arguably advances as defenses to the rule in his opinion. Although a principled rationale underlies the decision in Weeks, it does …

Manufacturers' Or Marketers' Liability For The Criminal Use Of Saturday Night Specials: A New Common Law Approach--Kelley V. R.G. Industries, 497 A.2d 1143 (Md. 1985), Matthew Steffey

Journal Articles

No abstract provided.

Reverend Michael D. Mccafferty, C.S.C., David T. Link

Journal Articles

This comment pays tribute to our beloved Father Mike who served as both a priest and a professor. Father Mike excelled at his profession of teaching law, not only by his ability to read a class to determine how to best ensure that students acquire a solid understanding of the substantive law as well as a mastery of the analytical skills, but also by his ability to counsel students. He was a source of faith and strength to our community. He will be greatly missed and remembered.

Dogmatomachy - A "Privatization" Theory Of The Religion Clause Cases, Gerard V. Bradley

Journal Articles

In the wake of Everson v. Board of Education, the Supreme Court has enforced a scheme of privatizing religion. However, this privatization scheme is met with criticism. One such criticism is this Article’s proposition that this scheme destroys religious consciousness in order to stymie religious factions. Through an examination of the normative view of privatization and its application to recent cases, the Author argues that hostility to religious consciousness is the denial of religious liberty as it reduces religion from an objective truth to a subjective preference.

Discretion In Making Legal Decisions: A Frances Lewis Law Center Colloquium, Thomas L. Shaffer

Journal Articles

Colloquium papers, pp. 1161-1311, edited by Professor Shaffer.

The Character Of A Partner's Distributive Share Under The "Substantial Economic Effect" Regulation, Alan Gunn

Journal Articles

Partnership income and deductions are allocated according to the amount and the character of each partner's distributive share. This article examines the ways in which the section 704(b) regulations apply the "substantial economic effect" test to character allocations. It argues that it is important to distinguish allocations of character from allocations of amounts to understand these regulations. This is because tests that the regulations apply to character issues have to do with source-measurement correspondence and proration, while amounts are determined according to economic effect in the capital account sense. Although the regulations' rules for character allocations purport to define "substantiality," …

Religion And Procedure, Robert E. Rodes

Journal Articles

God has no use for procedural rules since He knows the full truth and is able to exercise absolute justice simultaneously alongside complete mercy. This paper discusses the religious significance of legal rules of procedure in light of this truth. It finds that since we, unlike God, are inherently fallible, we are forced to implement procedures in the legal pursuit of our goals of truth, justice, and mercy. These procedures remain imperfect in implementing these goals, as compromises must often be made between competing values such as mercy on one hand and justice on the other. Nevertheless, though legal procedure …

Levinson Builds The Kingdom: Comment On "Professing Law", Thomas L. Shaffer

Journal Articles

This Article takes the perspective that the professed law is an idol. As such, it is false worship, which is led by false priests, and is rationalized by false prophets. Professor Shaffer proposes that those who believe in the will of God are presented with two tasks. First, one must tear down this idol, and secondly, one must then build the Kingdom. He focuses his discussion on how one can build the Kingdom, and examines the viability of a Kingdom built upon constitutionalism, citizenship, and community.

Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley

Journal Articles

Our Framers through the Establishment Clause sought to prevent the government from preferring one religious sect to another. However, the Supreme Court in Everson v. Board of Education abandoned that meaning of nonestablishment and created a general prohibition on all nondiscriminatory aid to religion, a decision later reinforced in Lemon v. Kurtzman. This Article discusses the Founder’s worldview and looks at other Establishment Clause cases to illustrate that the historical evidence is inconsistent with Everson. Rather, the founders intended to assure that religion would be aided only on a nondiscriminatory, or sect-neutral, basis and does not stand for …

The Struggle For Judicial Independence In Antebellum North Carolina: The Story Of Two Judges, Walter F. Pratt

Journal Articles

The Supreme Court of North Carolina is an anomaly among state courts in the antebellum years. In a period dominated by democratic reforms of state government, the court did not merely survive unscathed it actually increased its independence. The remarkable success of this court is largely attributable to the personal reputations and political acumen of two of its judges, Thomas Ruffin and William Gaston. Without those two men it is likely that the Supreme Court would have been abolished in a wave of democratic reforms that peaked in North Carolina with the constitutional amendments of 1835.