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Full-Text Articles in Law

German Law Paves The Way For Mandatory Mediation, Nadja Alexander Feb 2000

German Law Paves The Way For Mandatory Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Effective as of 1 January 2000, the Federal Government of Germany has introduced legislation permitting all German states (Laender) to introduce mandatory court-connected mediation with respect to certain kinds of civil disputes.


The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr. Jan 2000

The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.

Faculty Publications

According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with ...


Insurance Contracts And Judicial Decisions Over Whether Insurers Must Defend Insureds That Violate Constitutional And Civil Rights: An Historical And Empirical Review Of Federal And State Court Declaratory Judgments 1900-2000, Willy E. Rice Jan 2000

Insurance Contracts And Judicial Decisions Over Whether Insurers Must Defend Insureds That Violate Constitutional And Civil Rights: An Historical And Empirical Review Of Federal And State Court Declaratory Judgments 1900-2000, Willy E. Rice

Faculty Articles

Empirical findings suggest that extralegal factors, such as geographic location, ethnicity, gender, disability, perceived sexual orientation, and age of third-party victims, influence judicial decisions as to whether liability carriers must defend or reimburse the costs of defending various lawsuits. After the introduction, Part II of this article presents a brief discussion of state and federal declaratory judgment statutes and of the public policy behind liability and indemnification insurance contracts. Part III examines the origin and scope of insurers’ duty to defend, duty to pay legal expenses, and duty to reimburse litigation costs when third-party victims sue policyholders. Part IV argues ...


Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler Jan 2000

Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically rule-dependent. A viable constitutional challenge typically hinges upon the existence of a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Prof. Adler proposed one model of constitutional adjudication that tries to make sense of rule-dependence. He argued that reviewing courts are not vindicating the personal rights of claimants, but rather are repealing or amending invalid rules. IN a Commentary in this issue, Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. Fallon proposes that a reviewing court should overturn ...


Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler Jan 2000

Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a ...


Toward A More Independent Grand Jury: Recasting And Enforcing The Prosecutor’S Duty To Disclose Exculpatory Evidence, R. Michael Cassidy Jan 2000

Toward A More Independent Grand Jury: Recasting And Enforcing The Prosecutor’S Duty To Disclose Exculpatory Evidence, R. Michael Cassidy

Boston College Law School Faculty Papers

This Article analyzes the Supreme Court’s decision in Williams, in which the Court struck down an attempt by the Tenth Circuit to impose an obligation on federal prosecutors to disclose substantial exculpatory evidence to the grand jury. The author discusses the contours of this case and the ethical underpinnings of a prosecutor’s disclosure obligations before the grand jury, and sets forth a new framework for consideration of such issues.


Recent Efforts To Change Discovery Rules: Advice For Draftsmen Of Rules For State Courts, Paul D. Carrington Jan 2000

Recent Efforts To Change Discovery Rules: Advice For Draftsmen Of Rules For State Courts, Paul D. Carrington

Faculty Scholarship

No abstract provided.


The Problem Of Obtaining Evidence For International Criminal Courts, Jacob Katz Cogan Jan 2000

The Problem Of Obtaining Evidence For International Criminal Courts, Jacob Katz Cogan

Faculty Articles and Other Publications

International criminal courts will be judged by their fairness to defendants as well as to victims. In a very practical way, such claims will hinge, inter alia, on the ability of prosecutors and defendants to have reasonable access to probative evidence. But international criminal courts depend on states to provide them with evidence or access to evidence. The obligation of states to cooperate with international criminal tribunals in the production of evidence was at issue in the recent decision of the International Criminal Tribunal for the former Yugoslavia in the Blaki case (1997). That judgment and the provisions of the ...


The Complicated Ingredients Of Wisdom And Leadership, Michael A. Fitts Jan 2000

The Complicated Ingredients Of Wisdom And Leadership, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


Evaluating Mistakes In Intellectual Property Law: Configuring The System To Account For Imperfection, Maureen O'Rourke Jan 2000

Evaluating Mistakes In Intellectual Property Law: Configuring The System To Account For Imperfection, Maureen O'Rourke

Faculty Scholarship

In this Essay, the author argues that in assessing the performance of the intellectual property laws, it is useful to conceive of intellectual property law as a system comprised of both interacting decision-makers and other sets of law. Those decisionmakers include Congress, the PTO, and courts, and the other relevant laws include antitrust and contract. The author reviews the major intellectual property statutes, illustrating ways in which different institutions may be situated to correct the errors of another and how antitrust and contract also can work to correct errors in the scope of protection. The Essay concludes by arguing that ...


International Courts And American Courts, A. Mark Weisburd Jan 2000

International Courts And American Courts, A. Mark Weisburd

Faculty Publications

No abstract provided.