Law Commons^™

The Proper Role Of After-Acquired Evidence In Employment Discrimination Litigation, Rebecca White, Robert D. Brussack

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A new defense to employment discrimination claims has gained acceptance in the lower courts. Employers who allegedly have discriminated against their employees because of race, sex or age are winning judgments on the basis of after-acquired evidence of employee misconduct. The evidence is “after-acquired” in the sense that the misconduct was unknown to the employer at the time the alleged discrimination occurred but was acquired later, often through the use of discovery devices in the employee's discrimination action. Lower courts have accepted the proposition that if the employer would have discharged the plaintiff on the basis of the after-acquired evidence, …

The North American Free Trade Agreement (Nafta): Good For Jobs, For The Environment, And For America, Thomas J. Schoenbaum

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Although NAFTA's impact is primarily economic, it will also have a profound political impact, especially on relations between Mexico and the United States. In coming to the decision to seek a free trade agreement with the United States, Mexico has already made important political decisions: to jettison its defensive nationalism and fear of United States domination; to reform and liberalize its economic system; and to pave the way for democratizing its political institutions. The United States, in turn, has long sought a solid foundation to overcome its often prickly relationship with its southern neighbor and other Latin American nations. Eliminating …

Resolving Priority Disputes In Intellectual Property Collateral, Paul J. Heald

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Although a goodly amount of recent commentary provides guidance to practitioners on the pitfalls of perfecting a security interest in intellectual property collateral, and another body of work has undertaken the laudable task of proposing reform in the area, no comprehensive attempt has yet been made to help judges resolve the complex priority disputes that arise under existing law. In light of the increased use of intellectual property as collateral and the concomitant rise in litigation, guidance on the resolution of priority disputes in intellectual property collateral is sorely needed. For example, recent cases find Article 9 of the Uniform …

Copyright And "The Exclusive Right" Of Authors, L. Ray Patterson

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The purpose of this essay is to define and explore the meaning of "the exclusive Right" in the Intellectual Property Clause of the United States Constitution as related to the promotion of learning, the public domain, and authors. Without a clear understanding of this key term, one is likely to be unaware that lower federal courts are continually making rulings contrary to both the Copyright Clause and the Copyright Act. The classic example is the judicially created sweat-of-the-brow copyright, which in 1991 -- after seventy-five years of precedent -- the Supreme Court decreed to be unconstitutional. Other bad precedents, such …

The Georgia Jury And Negligence: The View From The Trenches, R. Perry Sentell Jr.

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This is the third part of a project devoted to analyzing the Georgia negligence jury. The project employed as its original point of departure the extensive Chicago Jury Study of the 1960s, directed by Chicago Law Professor Harry Kalven, Jr. That Study's immortality derives principally from its famous first premise: Meaningful evaluation of the jury system must originate from within the system itself. That premise propelled Professor Kalven through a massive national survey of trial judges. The judges' responses, under Kalven's insightful analysis, yielded an unprecedented profile of the American jury. In foundational fashion, those responses indelibly etched into legal …

State Taxation Of Corporate Income From Intangibles: Allied-Signal And Beyond, Walter Hellerstein

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If the field of state taxation has become somewhat of an academic backwater, it is not for want of issues warranting sustained scholarly attention. The Supreme Court alone has provided ample grist for the academic mill by handing down an extraordinary number of significant decisions delineating the federal constitutional restraints on state tax power. Among the state tax questions considered by the Court in recent years, none has figured so prominently and persistently in its deliberations as the states' power to tax the income of multijurisdictional corporations. In Allied-Signal, Inc. v. Director, Division of Taxation, the Court revisited the most …

Standing Rusty And Rolling Empty: Law, Poverty, And America's Eroding Industrial Base, Fran Ansley

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No abstract provided.

Justice Blackmun, Federalism, And Separation Of Powers, Dan T. Coenen

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On June 8, 1970, Harry A. Blackmun took his seat on the Supreme Court bench. Few then foresaw that, in the ensuing twenty-three terms of the Court, Justice Blackmun would make contributions to American law that rank no less than monumental. Justice Blackmun has become best known for his landmark opinion in Roe v. Wade and his increasingly pointed defense of libertarian and egalitarian values. During his long tenure on the Court, however, Justice Blackmun also quietly has shaped the law of constitutional federalism and separation of powers.

This reality first came to my attention in 1987, when I received …

Mindlessness And Nondurable Precautions, Paul J. Heald

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Assuming initially that negligence law does not make the distinction between durable and nondurable precautions, this Article will first explain in economic terms why the failure of courts to take into account the cost of remembering may nonetheless be efficient. A substantial body of research on the phenomenon of mindless decisionmaking ("scripting") suggests that most remembering is automatic--a nonconscious response to frequently encountered patterns of stimuli. Script theory suggests that once the behavioral script is in place, an automatic response operates at a very low cost. If so, the failure of courts to account for the cost of remembering would …

Money Laundering: Business Beware, Larry D. Thompson

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This Article examines the constitutionality of the Anti-Money Laundering Statutes. Specifically, the Article stresses that the Anti-Money Laundering Statutes, like RICO, are unconstitutionally vague and overbroad when applied to routine business transactions. Accordingly, Part II summarizes the void for vagueness and overbreadth doctrines. Part III sets forth the elements of the Anti-Money Laundering Statutes and then examines these elements under both doctrines. Part IV discusses how the lack of guidelines and, in some cases, the lack of prosecutorial discretion exacerbates the problems of vagueness and overbreadth. The Article concludes with the suggestion that guidelines similar to those adopted for RICO …

The Appropriate Role Of Plaintiff Misuse In Products Liability Causes Of Action, Peter Zablotsky

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No abstract provided.

Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer

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No abstract provided.

Fairness And Finality: Third-Party Challenges To Employment Discrimination Consent Decrees After The 1991 Civil Rights Act, Marjorie A. Silver

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In this Article, Professor Silver examines Section 108 of the Civil Rights Act of 1991, which limits challenges to employment practices taken pursuant to employment discrimination consent decreea The Article traces the development of the impermissible collateral attack doctrine, that doctrine's demise in Martin v. Wilks, and Congress' response to Martin as embodied in Section 108. Professor Silver also suggests ways in which Section 108 should be administered to comply with the Due Process Clause and argues for specific additional federal legislation to protect non-litigants or potential third-party challengers as well as to foster the utility and finality of legitimate …

Race, Riots And The Rule Of Law, Deborah Waire Post

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No abstract provided.

Homecoming: The Ritual Of Writing History, Deborah Waire Post

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No abstract provided.

The Eleventh Commandment: Thou Shalt Not Be Compelled To Render The Ineffective Assistance Of Counsel, Richard Klein

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No abstract provided.

Law, Art, And The Killing Jar, Louise Harmon

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No abstract provided.

Are Spread Out Cities Really Safer? (Or, Is Atlanta Safer Than New York?), Michael Lewyn

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No abstract provided.

The Fair Housing Act, Zoning, And Affordable Housing, Patricia E. Salkin, John M. Armentano

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No abstract provided.

Afterthoughts, Milner S. Ball

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Professor Richard Fallon delivered a thoughtful Sibley Lection which then served as the stimulating subject for an agreeable afternoon Symposium. The papers collected here offer some evidence of the richness of the conversation Fallon opened. I aim to extend that conversation, and so pay tribute both to the Symposium and its honoree, by submitting some afterthoughts. Fallon's paper, with its breadth and subtlety, resists reduction; however, if I do violence and force it into three sentences in an attempt at understanding, the result runs this way: Interests underlie both individual rights and government powers. These interests are conceptually related. It …

Thinking Property At Rome, Alan Watson

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It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se …

Getting To Know: Honoring Women In Law And In Fact, Lynne Henderson

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No abstract provided.

Reassessing The Sophisticated Policyholder Defense In Insurance Coverage Litigation, Jeffrey W. Stempel

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Insurance law often is ironically regarded as both consistent and confusing. However, the 1980s saw significant flowering in the development of an insurance coverage interpretation doctrine that, although seriously flawed in its present form, offers the as yet untapped potential of substantial improvement in judicial construction of commercial insurance policies through seemingly inconsistent treatment of insurance coverage disputes.

During the past two decades, in response to the prodding of lawyers representing insurers, courts have increasingly noted that not all insurance policyholders are equal. Some have more money and bargaining clout than others. Some have more sophistication and understanding about the …

Rights As Trumps, Dan T. Coenen

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In this essay, I question Professor Fallon's strong rejection of the notion that "rights are trumps" by making four points. First, rights are trumps in the single, but important, sense that they preclude the exercise of powers granted to government by the constitutional text. Second, rights sometimes operate as trumps on governmental powers in the very purse sense that they cut off all consideration of governmental interests. Third, even when the Court considers government interests in dealing with rights, it often does so on such a restricted basis that the description of rights as "trumps" remains accurate. Finally, even accepting …

The Common Law Theory Of Experts: Deference Or Education?, Joseph S. Miller, Ronald J. Allen

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What if witness testimony emerges from, or can only be understood by reference to, an experience that the fact finder lacks? Or what if the connection between what a witness says and the full import of what the witness means is so arcane that the chances are virtually zero that the jury will understand what the spoken words are intended to convey? Both cases arise surprisingly frequently in the trial of disputes. For example, the problem arises whenever a witness is not fluent in English, as it often does when the common practice of a business or trade plays a …

In Defense Of A Constitutional Theory Of Experts, Ronald L. Carlson

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Professor Ronald Allen honors the memory of John Henry Wigmore on virtually every occasion in which he targets an aspect of evidence law for scholarly study. As Wigmore Professor of Law, Allen has consistently afforded modern evidence specialists some of the best in provocative theory as grist for review and discussion. He now places experts in his sights, and the results are no less stimulating.

Refusing To Rock The Boat: The Sears/Compco Preemptioni Doctrine Applied To Bonito Boats V. Thunder Craft, David E. Shipley

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This article discusses the Bonito Boats and Interpart cases in conjunction with the lower courts' interpretations of the challenged state "plug molding" statutes. It analyzes the Supreme Court's resolution of the conflict between the Bonito Boats and Interpart decisions and then explores the ramifications of Bonito Boats. The article concentrates on the ways in which this decision may expand the scope of federal preemption of state law protection for certain kinds of intellectual property.

Machiavelli And The Politics Of Welfare, National Health, And Old Age: A Comparative Perspective Of The Policies Of The United States And Canada, Camilla Watson

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This Article maintains that in order to fully comprehend the politics of welfare, retirement security, and national health coverage, it is necessary to examine Machiavellian principles in relation to the variables of economic development and inter-party competition. If the principles of Machiavelli are applied in a slightly different and more constructive manner, they may facilitate reform of the American welfare, retirement, and national health systems. Now that the political balance in the United States has shifted from the conservative to the liberal, the time is ripe to consider reforming the entire Social Security system and instituting a comprehensive national health …

Rethinking The Rule Of Law: A Demonstration That The Obvious Is Plausible, Francis J. Mootz Iii

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In this Article, I defend the Rule of Law from its detractors in the academy by uncovering and criticizing the unsound presuppositions driving their critiques. I acknowledge that these critiques raise two different problems for those who defend the plausibility of the Rule of Law: The problem of ensuring legal innovation and the problem of supplying effective constraint. In response to these problems, I locate our faith in the Rule of Law in the hermeneutical practice in which we are engaged as lawyers. Jurisprudential characterizations of the problems of constraint and innovation are misguided reactions to the narrow Enlightenment conception …

Is The Rule Of Law Possible In A Postmodern World?, Francis J. Mootz Iii

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The Rule of Law is the core of our political and legal ideology, but the Rule of Law increasingly is attacked as an unattainable goal. Postmodern theorists challenge whether it makes sense to believe that rules can be formulated for general application and then later neutrally applied by decision makers. Postmodern theorists reject the Enlightenment world view and its political corollary, classical liberalism. The author agrees with the spirit of the postmodern critique, but argues that we can understand the Rule of Law in a manner consonant with postmodern thought. Drawing on the Continental tradition of hermeneutics, or the philosophy …