Law Commons^™

Altering U.S. Treaty Policy To Permit The Negotiating Of Zero Withholding On Portfolio Dividends: An Invitation To Research, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Myth And Reality: The Threat Of Medical Malpractice Claims By Low Income Women, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

A Trustworthy Lawyer, Winnie F. Taylor

Faculty Scholarship

No abstract provided.

The Unworkability Of Court-Made Enterprise Liability: A Reply To Geistfeld, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Real Property: 1992 Survey Of Florida Law, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Mandatory Prelicensure Legal Internship: An Idea Whose Time Has Come Again, Stephen R. Alton

Faculty Scholarship

This Article explores the wisdom of imposing an internship requirement on aspiring lawyers as a prerequisite for licensure. It is my position that such a requirement can be beneficial to the new attorney, to the profession, and to the public and should thus be mandated for all those who seek admission to the practice of law. This Article begins by briefly examining the history in the United States of law-office, apprenticeship as a means of legal education. I then proceed to an examination of modern internship requirements in England and Canada. There follows a discussion of some of the more …

In The Wake Of Thoreau: Four Morden Legal Philosophers And The Theory Of Nonviolent Civil Disobedience, Stephen R. Alton

Faculty Scholarship

This Article opens with a discussion of Thoreau's philosophy of civil disobedience and then examines the ideas of four modem legal philosophers, Joseph Raz, Kent Greenawalt, John Rawls, and Ronald Dworkin, on the subject. Next, the Article compares the respective thinking of all five men regarding the circumstances that would justify the use of civil disobedience. To facilitate the comparison as well as to make it more relevant to the reader, the Article examines five related contemporary illustrations involving situations in which the use of civil disobedience might arguably be morally justified. This Article concludes with some general thoughts on …

Staffing National Health Care Reform: A Role For Advanced Practice Nurses, Linda H. Aiken, William M. Sage

Faculty Scholarship

Expanding access and coverage while containing costs can only be accomplished by getting more health care value for our money. Two facts about our current system make this seem possible. First, the currently uninsured are not costless. Providing stop-gap health care to those who lack health insurance is extremely expensive -- people without formal coverage cannot afford preventive services, delay treatment of illness and face substantial barriers to reaching appropriate providers. When they receive care, it is often degrading, usually complicated and costly, and more than occasionally too late. The cost of this "uncompensated" care is borne by all of …

The Gains From Faith In An Unfaithful Agent: Settlement Conflicts Between Defendants And Liability Insurers, Michael J. Meurer

Faculty Scholarship

A pervasive problem in the settlement of liability litigation arises because liability insurers bundle their promise to indemnify the insured with a promise to represent the insured in settlement and litigation [see, e.g., Beckwith Machinery Co. v. Travelers Indemnity Co., 638 F.Supp. 1179 (W.D. Pa. 1986)]. Standard policies not only require the insurer to pay for legal representation but, more importantly, give the insurer the privilege of controlling the litigation and settlement process. The problem is how to resolve the conflict of interest between the insurer and the insured that may arise during settlement negotiations. This conflict is manifest when …

Thelma And Louise And Bonnie And Jean: Images Of Women As Criminals, Susan Herman

Faculty Scholarship

No abstract provided.

Efficiency And Individualism, Gary S. Lawson

Faculty Scholarship

Law and economics-the systematic application of neoclassical price theory to legal problems 1 -has dominated the legal academy in recent years. One recent study found that law and economics "for several decades appears to have pervaded about one quarter of scholarship in elite law reviews,"2 and that figure may seriously understate the theory's influence.3 A number of justifiably wellregarded scholarly journals devote themselves almost exclusively to economic analysis of law, and the subject is now a regular part of law school curricula.' Perhaps most importantly, law and economics is a pervasive and influential presence in informal academic discussions. Even legal …

Diversity, Mulitculturalism, And Affirmative Action: Duke, The Nas, And Apartheid, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Personal Narratives And Racial Distinctiveness In The Legal Academy, Maria O'Brien

Faculty Scholarship

A small group of legal academicians is embroiled in yet another debate that, to the uninitiated at least, appears to have little or nothing to do with "the law." ¹ This time the issue is the ideology of legal writing style-that is, does a growing, unique body of legal scholarship that draws on the personal experiences of minority faculty and, arguably, reflects the racial oppression these scholars have suffered, produce "distinct normative insights?" ² Professor Patricia Williams of the University of Wisconsin clearly believes that it does.

In her new book, The Alchemy of Race and Rights,³ which is …

Whose Law Is It Anyway?, Susan P. Koniak

Faculty Scholarship

What can and should be the role of private groups in creating and maintaining law? What can and should be the relationship between law-giver and law-receiver? These fundamental questions haunt each of the essays that make up Corporate Lawbreaking and Interactive Compliance (hereinafter Corporate Lawbreaking).' These questions, though not the explicit focus of the book, are questions to which the essayists and editors of this book are speaking whether they realize it or not. Seen as a series of discussions on the role of non-state groups in creating and maintaining law, this book is provocative and worth reading. Some of …

Particularity And Generality: Challenges Of Feminist Theory And Practice In Work On Woman-Abuse, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

The Law Between The Bar And The State, Susan P. Koniak

Faculty Scholarship

The traditional understanding of the relation between law and professional legal ethics is that legal ethics covers matters not covered by law; that ethics sits passively above law, starting where law leaves off. In this Article, Professor Susan Koniak argues that this understanding is wrong. She asserts that professional ethics are in competition and conflict with law as it is embodied in the pronouncements of courts and legislatures. Although "law" is usually considered to be the near exclusive preserve of the state, the Article contends that private groups also have "law," but it is usually called "ethics." The legal profession's …

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Faculty Scholarship

The U.S. Constitution forbids both the federal and state governments from taking private property for public use in the absence of just compensation. In determining whether particular government actions require compensation, the members of the U.S. Supreme Court have agreed that the purpose of the constitutional compensation requirement is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." The members of the Court have also agreed that whether justice and fairness require compensation will turn upon a two-step inquiry. First, government action …

Justice For Rodney King, Scott C. Burrell, Alan R. Dial, Thomas W. Mitchell

Faculty Scholarship

May 1992 letter from three Howard University School of Law students to President George H.W. Bush advocating that the United States Department of Justice invoke the Petite Policy to initiate a criminal action against the Los Angeles Police Department police officers responsible for brutally beating Rodney King despite the fact that these offers had been acquitted in a California state court. The letter, which was read in front of the White House by Thomas Mitchell to hundreds of people who had gathered to urge the federal government to take action, sets forth a clear legal basis to permit the Justice …

The Eichmann Trial, The Jewish Question, And The American-Jewish Intelligentsia, Pnina Lahav

Faculty Scholarship

The abduction, trial, and execution of Adolf Karl Eichmann by the state of Israel, fifteen years after the shutdown of the crematoria at Auschwitz, challenged the American Jewish intelligentsia to confront the Jewish question.4 What does it mean to be a Jew in America and who is an American Jew? Is the Jewish history of anti-Semitism and the Holocaust also a part of American-Jewish history? Is there a lesson in the destruction of European Jewry-the triumph of anti-Semitism, the failure of assimilation-relevant to American Jews? Is there a national component to being Jewish? Are Jews a people? If so, is …

Violence Against Women And Legal Education: An Essay For Mary Joe Frug, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Attorneys' Malpractice Policies: Regulatory Exclusions And Public Policy, Susan Saab Fortney

Faculty Scholarship

The courts have yet to decide the issue of the enforceability of provisions in legal malpractice insurance policies that specifically exclude from coverage claims made by government regulators such as the FDIC. The question has reached the courts with respect to such exclusionary provisions in directors' and officers' liability insurance policies, and here the courts are split. The author discusses the current case law and the statutory developments.

Reality As Artifact: From Feist To Fair Use, Wendy J. Gordon

Faculty Scholarship

Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "it's a fact that X happened," the speaker usually means, "I believe the thing I describe has happened in the world." But when a litigator presents something as a "fact," she often means only that a good faith argument can be made on behalf of its existence. Two sets of factfinders can look at the same event and come to diametrically opposed conclusions-each of which is binding, but …

Asymmetric Market Failure And Prisoner's Dilemma In Intellectual Property, Wendy J. Gordon

Faculty Scholarship

When competitors engage in unrestrained copying of each others' intangible products, the structure can resemble a prisoner's dilemma in which free choice leads to unnecessarily low individual payoffs and low social welfare. There are many ways to avoid these low payoffs, such as contract enforcement, direct regulation of copying behavior through IP, and direct government subsidies. All of these modes alter the payoff pattern away from prisoner's dilemma.

When should lawmakers place copyright law or other IP law among the prime options to consider?

Because copyright, patent, misappropriation and the like all work through private-property markets, one key is to …

Shell Games: The Continuing Legacy Of Rights To Minerals And Water On Spanish And Mexican Land Grants In The Southwest, G. Emlen Hall

Faculty Scholarship

This paper explores generally this paradoxical approach to mineral and water rights on confirmed Spanish and Mexican land grants. The analysis treats mineral and water rights separately. For each critical land grant resource, the paper explicates basic law of the Southwest's antecedent sovereigns. It then suggests how those Spanish and Mexican rights fit within the 1848 Treaty of Guadalupe Hidalgo guarantee of protection of "property rights." It proceeds to analyze how the United States implemented those guarantees, suggesting that the treatment of the succeeding sovereign owed more to its own law than it did to the law of the antecedent …

'Atomistic Man' Revisited: Liberalism, Connection, And Feminist Jurisprudence, Linda C. Mcclain

Faculty Scholarship

One of the major strains of feminist jurisprudence has criticized American law, and the liberal jurisprudence and political philosophy on which it is said to be grounded, as male or masculine.' A central theme of the critique has been that the law embodies a masculine perspective in emphasizing autonomy and the individual over interdependency and the community. Liberalism has been viewed as inextricably masculine in its model of separate, atomistic, competing individuals establishing a legal system to pursue their own interests and to protect them from others' interference with their rights to do so. Hence, it is said that liberal, …

On Owning Information: Intellectual Property And The Restitutionary Impulse, Wendy J. Gordon

Faculty Scholarship

Every day someone invests time, labor, or money in creating a valuable intangible. Someone collects information, creates an idea, designs a boat hull, writes a book, or comes up with a new way to market a product that someone else developed. Judicial treatment of these and other cognate occurrences has shifted dramatically in recent years.

Procedural Due Process In Guidelines Sentencing, Susan Herman

Faculty Scholarship

No abstract provided.

Self-Paternalism In The Marketplace, Bailey Kuklin

Faculty Scholarship

No abstract provided.

What Can You Say, Where Can You Say It, And To Whom?: A Guide To Understanding And Preventing Unlawful Sexual Harassment, David Allen Larson

Faculty Scholarship

After an increase in visibility for sexual harassment cases in 1991, employers have had to treat allegations of sexual misconduct more seriously now that juries have the authority to award both compensatory and punitive damages. Many employers and employees remain confused, however, as to what conduct is considered unlawful sexual harassment. This article explains how courts have analyzed allegations of unlawful sexual harassment under Title VII of the Civil Rights Act of 1964 by discussing what a court must find before it will impose liability. In response to the very real and immediate demand for a straightforward discussion of the …

Police Officers Accused Of Crime: Prosecutorial And Fifth Amendment Risks Posed By Police-Elicited "Use Immunized" Statements, Kate Bloch

Faculty Scholarship

No abstract provided.