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Articles 1 - 30 of 32
Full-Text Articles in Law
Progress And Progression In Family Law, Martha Albertson Fineman
Progress And Progression In Family Law, Martha Albertson Fineman
Faculty Articles
The process and nature of change in our family formation seems unlikely to be derailed. The policy question for those concerned with the institution of the family in today's world should not be how we can resuscitate marriage and thus save society, but rather how we can support all individuals who create intimate, caring relationships, regardless of the form of those relationships. Continued inattention to the social and economic dislocations and the emerging family needs produced in the wake of changes in family formation can be disastrous, not only to individual families, but also to society.
Of particular importance for …
Lessons From La Morenita Del Tepeyac, Ana M. Novoa
Lessons From La Morenita Del Tepeyac, Ana M. Novoa
Faculty Articles
The concept that the powerful and wealthy have the absolute obligation to offer political, financial, and social liberation to those at the margins of society should have special importance to those who are lawyers and professionals of color. People spend considerable time working through, working in, and centered in the dominant, or caucasian European culture. The legal system regularly fails to see, accept, realize, or believe when truth is presented at the margins. Nonetheless, it is at the margins that true legal and personal reform take place. Even in a friendly environment, where people are encouraged to step outside the …
A Continuing Whimsical Search For The True Meaning Of The Term “Product” In Products Liability Litigation, Charles E. Cantú
A Continuing Whimsical Search For The True Meaning Of The Term “Product” In Products Liability Litigation, Charles E. Cantú
Faculty Articles
More than a decade has elapsed since an initial attempt was made to discern the true meaning of the term product in products liability litigation. At the time, a brief history of events leading up to the adoption of Section 402A of the Restatement (Second) of Torts was outlined, and it was emphasized that what had at first seemed so simple subsequently proved to be somewhat complex.
An examination of cases involving the sales/service transaction, as well as those involving real estate, blood, electricity, component parts, water, computer software, and ideas, sometimes held that what was involved was a product. …
Secured Transactions History: The First Chattel Mortgage Acts In The Anglo-American World, George Lee Flint Jr, Marie Juliet Alfaro
Secured Transactions History: The First Chattel Mortgage Acts In The Anglo-American World, George Lee Flint Jr, Marie Juliet Alfaro
Faculty Articles
The chattel mortgage acts first arose in the southern mainland English-American colony of Virginia in 1643. Other colonies followed suit over the next 100 years. The function of the earliest chattel mortgage acts was not to legalize the transaction, but to declare it void if not registered, or to provide a priority rule favoring the registered transaction. Legislatures did not pass these colonial chattel mortgage acts to legalize an otherwise fraudulent transaction because reported cases indicate that the common law upheld the nonpossessory secured transaction prior to the passage of the earliest act in the southern states.
The Northeastern States’ …
Texas Annual Survey: Securities Regulation, George Lee Flint Jr
Texas Annual Survey: Securities Regulation, George Lee Flint Jr
Faculty Articles
The ease of becoming judgment proof in Texas, with liberal exemptions from execution of judgment, makes secondary liability very important. Texas statutes provide for four such liability theories: aiding and abetting, control person liability, third party actual awareness liability, and third party beneficiary liability. In addition to these four liability theories, federal law adds primary liability for some secondary parties.
The 78th Texas Legislature made two changes geared toward reducing the cost to the State of Texas in operating the State Securities Board. The Board also made several rule changes to increase revenues and to make other non-substantive changes. Moreover, …
Transferred Intent In American Tort Law, Vincent R. Johnson
Transferred Intent In American Tort Law, Vincent R. Johnson
Faculty Articles
The transferred-intent doctrine is a fiction that is no longer needed by American tort law, because of the replacement of contributory negligence with comparative negligence and development in the law of negligence since the creation of the transferred-intent doctrine. In the midst of decades of tort reform, the transferred-intent fiction has survived. Though total abolition is unlikely, its use and applicability should be greatly restricted given the existence of non-fictitious avenues for equal recovery.
The transferred-intent doctrine developed when no avenue for recovery existed for plaintiffs who were contributory negligent. Since the advent of comparative negligence, however, the need for …
Law And Bioterrorism By Victoria Sutton (Book Review), Jeffrey F. Addicott
Law And Bioterrorism By Victoria Sutton (Book Review), Jeffrey F. Addicott
Faculty Articles
The best primer for constructing a legal framework surrounding bioterrorism is a wonderfully researched and incisive book by Professor Victoria Sutton. Sutton brings a vast background of experience and expertise to her book, titled Law and Bioterrorism, which is in fact the first legal textbook in the field of law and bioterrorism.
The book begins with a brief examination of the history of law and bioterrorism, from ancient biological warfare to modern times. Drawing upon the lessons of this history, Sutton discusses historical events such as the use of anthrax in World War I, and further examines the rapidly growing …
Are Women More Ethical Lawyers – An Empirical Study, Patricia W. Moore, Kevin M. Simmons
Are Women More Ethical Lawyers – An Empirical Study, Patricia W. Moore, Kevin M. Simmons
Faculty Articles
We first noticed a possible "gender gap" in attorney discipline when we ran across the Oklahoma Disciplinary Commission's annual report for the year 2000. Women currently constitute 27% of Oklahoma attorneys, but 0% of the disciplined attorneys—none of the seventeen named—were women. Wondering whether the Oklahoma figures were aberrational, we attempted to locate research concerning gender and attorney discipline. But there have been few such studies, although “[p]robably no issue in the social sciences receives more attention than the difference between men and women.”
We thus embarked upon a national study of disciplinary actions decided in 2000. After collecting, coding, …
Maternity Rights In Mexico: With References To The Spanish And American Codes, Roberto Rosas
Maternity Rights In Mexico: With References To The Spanish And American Codes, Roberto Rosas
Faculty Articles
Mexico, the United States, and Spain approach maternity rights and benefits from differing perspectives within diverse legal frameworks. Maternity and pregnancy deserve legal protection in the workplace by virtue of their vital role to society. Women worldwide share a concern for maternity rights and benefits, but countries approach legal rights related to motherhood and pregnancy from differing perspectives.
The laws in Mexico and Spain regarding maternity share many similarities, including protecting not only the mother and fetus, but also the infant and father. In contrast, the laws in the United States solely protect the mother and unborn fetus. The laws …
Appellate Mediation—A Mediator’S Perspective, L. Wayne Scott
Appellate Mediation—A Mediator’S Perspective, L. Wayne Scott
Faculty Articles
A mediator helps the parties determine whether there is a bargaining zone that will allow a settlement to be reached. Mediation is an alternative form of conflict resolution, which promotes the interests of private and public resources that would otherwise be spent on litigation, while also empowering the parties to seek better justice than they would find in court. Anyone can serve as a mediator, but one should be well-trained in people skills, negotiation techniques, and knowledgeable about trial and appellate procedure and trends.
A mediator’s job includes: (1) helping the parties review and analyze their case; (2) bridging the …
Status And Tenure For Academic Law Librarians: A Survey, Robert H. Hu, Sharon Blackburn, Masako Patrum, Sharon K. Scott
Status And Tenure For Academic Law Librarians: A Survey, Robert H. Hu, Sharon Blackburn, Masako Patrum, Sharon K. Scott
Faculty Articles
The debate surrounding the issue of faculty and academic status for librarians has captured the attention of contributors to library literature for many years. This ongoing concern eventually led to collective action: in 1959, a report of the University Libraries Section of the Academic Status Committee of the Association of College and Research Libraries (ACRL) “strongly recommended” professional librarians be granted academic status and privileges. Opinion pieces have since abounded, with some convinced that the perceived benefits attached to “faculty status” are the due of the librarian, while others are just as strongly convinced that “status” too often comes with …
Employment Law - Racial Discrimination - Circumstantial Evidence Of Racial Discrimination May Be Introduced To Raise A Genuine Issue Of Material Fact, Patricia W. Moore
Employment Law - Racial Discrimination - Circumstantial Evidence Of Racial Discrimination May Be Introduced To Raise A Genuine Issue Of Material Fact, Patricia W. Moore
Faculty Articles
In Hopson v. DaimlerChrysler, the United States Court of Appeals for the Sixth Circuit decided whether summary judgment was appropriate for the defendant on racial discrimination claims based on violations of Title VII, 42 United States Code § 2000e-2000e-17 and the Elliott-Larsen Civil Rights Act, Michigan Compiled Laws Annotated 37.2101.
All Facts Are Not Created Equal, Bryan Adamson
All Facts Are Not Created Equal, Bryan Adamson
Faculty Articles
This article attempts to: 1) illustrate the inherent ambiguities of Rule 52(a), exacerbated by a court-created fact typology; 2) explain one of those types-the constitutional fact doctrine-and demonstrate how the Supreme Court has applied that doctrine inconsistently; and 3) explore whether the Sixth Circuit, by invoking the constitutional fact doctrine in Grutter, was attempting to extend the doctrine into the jurisprudence of Fourteenth Amendment intentional discrimination claims, or wrongfully appropriating the trial court's fact finding role.
Retirement Security Through Asset Protection: An Evolution Of Wealth, Privilege, And Policy, John K. Eason
Retirement Security Through Asset Protection: An Evolution Of Wealth, Privilege, And Policy, John K. Eason
Faculty Articles
This article examines post-1974 progressions in congressional and judicial thinking about asset protection as it relates specifically to the attainment of federal retirement policy goals. The article first considers the link between historical trust protections and modern federal retirement policy. That analysis reveals a more recent trend towards defining the scope of retirement plan asset protection by reference to statutory rules that grant favorable treatment to certain retirement savings devices. Those rules provide an incentive for funding future retirement through current savings. This article explains how, and why, asset protection could be similarly tailored to foster retirement income security goals. …
Rise Of The Machines: Justice Information Systems And The Question Of Public Access To Court Records Over The Internet, Gregory Silverman
Rise Of The Machines: Justice Information Systems And The Question Of Public Access To Court Records Over The Internet, Gregory Silverman
Faculty Articles
Professor Silverman discusses the machines that have been taking up positions in the court houses for more than a quarter of a century. These machines are becoming an integrated network integral to the workings of the court. With the assistance of the machines, the myriad and diverse members of the justice and public safety communities together with the public will evolve into a single complex whole that could dedicate itself to creating a more humane and just society comprised of better informed individuals to whom they are genuinely accountable. There are those who fear the machines, afraid that personal privacy …
Case Comments: Constitutional Law: Reaffirming Every Floridian’S Broad And Fundamental Right To Privacy, Diane Lourdes Dick
Case Comments: Constitutional Law: Reaffirming Every Floridian’S Broad And Fundamental Right To Privacy, Diane Lourdes Dick
Faculty Articles
In this article Professor Diane Lourdes Dick examines the Parental Notice of Abortion Act (the Act) that was passed in 1999 by the Florida Legislature, which required minors seeking an abortion to either notify a parent prior to the procedure or obtain court approval to waive parental notice. A minor choosing the latter option must demonstrate to a court that she is either mature enough to make the decision or that, despite a court's finding that she lacks sufficient maturity, parental notification is clearly not in her best interest. The statute has never been enforced and the right to privacy …
What Lies Beneath: Determining The Necessity Of International Groundwater Policy Along The United States - - Mexico Border And A Roadmap To An Agreement (Comment), Amy Hardberger
Faculty Articles
The United States and Mexico share water in many aquifers along the border. Although significant attention has been given to international surface water, little to no policy has been generated regarding shared groundwater. Groundwater is a resource of growing importance because surface water resources are quickly being depleted.
While there are almost no international agreements for groundwater, guidance documents suggest what should be included. Increased dependence on groundwater by both sides of the border creates the potential for conflict because the only legal framework for water allocation involves surface water. The US and Mexico must shift from passive to active …
Business As Usual? Brown And The Continuing Conundrum Of Race In America, Robert S. Chang, Jerome M. Culp Jr.
Business As Usual? Brown And The Continuing Conundrum Of Race In America, Robert S. Chang, Jerome M. Culp Jr.
Faculty Articles
In this article, Professors Robert Chang and Jerome Culp examine the state of race in America in the aftermath of the landmark Supreme Court decision of Brown v. Board of Education, focusing on the ten-year window preceding its fiftieth anniversary. Their findings reveal that while Brown established fundamental precedent in the area of race relations, racial inequality remains entrenched in a number of modern social institutions. Chang and Culp analyze this dilemma by focusing on three distinct trends. First, a cycle of inequality is driven by racial disparities in wealth and perpetuated by interlocking systems of education, housing, family, healthcare, …
Beyond Lane: Who Is Protected By The Americans With Disabilities Act, Who Should Be?, Russell Powell
Beyond Lane: Who Is Protected By The Americans With Disabilities Act, Who Should Be?, Russell Powell
Faculty Articles
This article reviews the state of disability law under the Americans with Disabilities Act ("ADA"), with particular attention paid to Lane and other recent Supreme Court cases. In Lane, the Court affirmed that Congress validly exercised its power when it made states subject to suits under the ADA, at least with regard to limitations on access to courts. While the decision addresses Title II of the ADA (restrictions on state discrimination), it does have broader implications for the Act as a whole. Lane reflects a significant shift in the ethical paradigm used by the court to decide ADA cases and …
Trade Liberalization, Food Security And The Environment: The Neoliberal Threat To Sustainable Rural Development, Carmen G. Gonzalez
Trade Liberalization, Food Security And The Environment: The Neoliberal Threat To Sustainable Rural Development, Carmen G. Gonzalez
Faculty Articles
This article examines the historic and contemporary roots of chronic malnutrition and environmental degradation in the developing world. It chronicles the patterns of trade and production that contribute to this problem from the colonial period until the present, and analyzes the role of contemporary trade, aid and development practices in ameliorating or exacerbating the problem. The article argues that the neoliberal economic reforms imposed on developing countries through the International Monetary Fund (IMF), the World Bank, and the World Trade Organization (WTO) exacerbate hunger and environmental degradation by reinforcing pre-existing inequities in the global trading system that relegate many developing …
Preemptive War: Is It Constitutional, John B. Mitchell
Preemptive War: Is It Constitutional, John B. Mitchell
Faculty Articles
When America attacked Iraq in 2002, it was the first preemptive war in the history of our nation. While there is daily debate over the wisdom and consequences of that action, the question whether the federal government even possessed the power under the Constitution to wage preemptive war does not seem to have been raised. Although the legal literature abounds with discussion about whether the President may authorize significant military operations without the explicit authorization of Congress, the author could not find a single work written in legal cases or commentary about preemptive war. This article considers this heretofore unanswered …
Innocent Spouses: A Critique Of The New Laws Governing Joint And Several Tax Liability, Lily Kahng
Innocent Spouses: A Critique Of The New Laws Governing Joint And Several Tax Liability, Lily Kahng
Faculty Articles
This article provides a framework for such interpretation and implementation of the new innocent spouse laws. The author presents an overview of the current tax law treatment of married joint filers under which joint and several liability is imposed unless relief is available under the new innocent spouse laws. The article then examines the tax rationales that have traditionally been offered for imposing joint and several liability. The author concludes that because the fiction of marital unity is deeply embedded in our tax system, joint and several liability for married joint filers is likely to remain the law. While it …
The Cambodian Amnesties: Beneficiaries And The Temporal Reach Of Amnesties For Gross Violation Of Human Rights, Ronald Slye
The Cambodian Amnesties: Beneficiaries And The Temporal Reach Of Amnesties For Gross Violation Of Human Rights, Ronald Slye
Faculty Articles
This article uses the two amnesties granted by the Cambodian government in 1994 and 1996 to explore two important legal issues raised by amnesties generally: 1) to whom is the amnesty granted; and 2) for how long will the amnesty last. The first issue addresses the beneficiary question – who is able to take advantage of an amnesty. The most interesting issue raised by the beneficiary question is whether an amnesty should be restricted to either superiors or subordinates. The article discusses this choice in the context of the Cambodian amnesties, other amnesties, and international law, and highlight the moral, …
The Landmark Free-Speech Case That Wasn't: The Nike V. Kasky Story, David Skover, Ronald Collins
The Landmark Free-Speech Case That Wasn't: The Nike V. Kasky Story, David Skover, Ronald Collins
Faculty Articles
Written as the Foreword to a Symposium entitled Nike v. Kasky and the Modern Commercial Speech Doctrine, this piece tells the background stories that brought the Nike v. Kasky players to the steps of the U.S. Supreme Court and beyond. Subsequently, it explores the principles and perspectives at tension in the Nike controversy, and charts the lessons of the Nike story - legal, political, and cultural.
Letters To The Editors Of Health Matrix, Ken Wing
Letters To The Editors Of Health Matrix, Ken Wing
Faculty Articles
Professor Wing presents this letter to the editor concerning the health law in the U.S. He argues that there is no severable body of principles, or even a set of issues, defined by either circumstances or type of controversy in the teaching of health law. Would health law involve the legal issues that arise in the delivery of patient care? Well, that begins to define the subject, but that is only part of what's called health law. Legal issues related to health care? To health? Those definitions may work, but what is the point of such a broad and meaningless …
Un Enfoque Comparativo Sobre La Formacion De Los Contratos Electronicos, Roberto Rosas
Un Enfoque Comparativo Sobre La Formacion De Los Contratos Electronicos, Roberto Rosas
Faculty Articles
Understanding the basic principles governing the formation of contracts is of paramount importance when it comes to figuring out the most appropriate to enter into a new contract or to assess the legality of a contract existing ones. While the basic rules for the forming of general contracts are applicable to most type of contracts, regardless of how they are done, there are some legal rules that apply specify to contracts concluded electronically.
Insurance Decisions - A Survey And Empirical Analysis, Willy E. Rice
Insurance Decisions - A Survey And Empirical Analysis, Willy E. Rice
Faculty Articles
During the period from June 2002 to July 2003, the Court of Appeals for the Fifth Circuit decided twenty-two appeals originating in eight federal district courts. Certainly, the greater majority of the insurance appeals involved recurring substantive and procedural conflicts. Major disagreements about the interpretation and enforcement of insurance contracts were before the court. Also, federal preemption questions and conflicts over subject-matter jurisdiction appeared in several cases. Furthermore, the Fifth Circuit addressed one case of first impression, and on remand from the Supreme Court, the appellate court modified and reinstated portions of a vacated opinion. For the most part, the …
Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International And Mexican Law, Roberto Rosas
Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International And Mexican Law, Roberto Rosas
Faculty Articles
No abstract provided.
Evidentiary Tactics: Selecting The “Best” Evidence To Simplify The Case, Edward J. Imwinkelried, David A. Schlueter
Evidentiary Tactics: Selecting The “Best” Evidence To Simplify The Case, Edward J. Imwinkelried, David A. Schlueter
Faculty Articles
In the early 1990s, the American Bar Association Special Committee on Jury Comprehension released the results of surveys of jurors. These jurors had participated in complex federal and state cases. The researchers asked the jurors what complaints they had against the attorneys who had tried the cases. By a wide margin, the primary complaint was that the litigators went overboard and swamped the jury with information, particularly an excessive number of exhibits.
At trial, the attorney must exorcise the demons of complexity and confusion. There are strategies and tactics that should be employed to reduce cases to manageable portions that …
Secured Transactions History: The Impact Of Southern Staple Agriculture On The First Chattel Mortgage Acts In The Anglo-American World, George Lee Flint Jr, Marie Juliet Alfaro
Secured Transactions History: The Impact Of Southern Staple Agriculture On The First Chattel Mortgage Acts In The Anglo-American World, George Lee Flint Jr, Marie Juliet Alfaro
Faculty Articles
The development of secured transaction law in colonial America was spurred by a litigious conflict between the recognizance and the chattel mortgage. The recognizance was the admission and recording of a debt before the court in order to secure credit. However, court hearings were infrequent in the colonies and often logistically impractical to the average farmer or merchant. The chattel mortgage was a more informal and practical solution to providing lines of credit on personal property. Without a system for recording chattel mortgages, lenders could not be sure in their investments.
In the southern colonies, the emergence of staple crops, …