Law Commons^™

Standards Of Medical Care Based On Consensus Rather Than Evidence: The Case Of Routine Bedrail Use For The Elderly, Howard S. Rubenstein, Frances H. Miller, Sholem Postel, Hilda B. Evans

Faculty Scholarship

“An 88-year-old male patient was found on his hands and knees on the floor beside his bed. The bedrails were up.”—From an indent report filed by a nurse at the Stillman Infirmary, University Health Services, Harvard University, in May 1980.

Finding elderly patients lying on the floor beside their beds despite the presence of elevated bedrails seems paradoxical: how can a patient fall out of bed when the bedrails are up? Surprisingly, this paradox constitutes one of the leading incidents plaguing hospitals in the United States today. It exemplifies a much larger problem created, we believe, by the uncritical adoption …

The Power Struggle Between Shareholders And Directors: The Demand Requirement In Derivative Suits, Tamar Frankel, Wayne M. Barsky

Faculty Scholarship

This article examines the demand shareholders must make on a corporation's board of directors prior to bringing a derivative suit. ... Presented with the question of whether the court would give effect to a decision of a committee of disinterested directors to terminate a shareholder derivative suit alleging directors' breach of fiduciary duties, the court ruled that even if the special committee was truly disinterested and independent, "[t]he Court should determine, applying its own independent business judgment, whether the [corporation's] motion [to dismiss the derivative action] should be granted." ... A derivative suit is one of the means for conducting …

Interest Elements In Tax Planning, Daniel S. Goldberg

Faculty Scholarship

This article discusses how interest has been and is being used in tax planning. The tax planning techniques using interest include charging too little interest or none at all, recalssifying interest as principal and allocating interest among time periods to optimize the tax consequences to the parties. The issues raised by these tax planning techniques go to the heart of the tax system. They suggest inadequacies in the development of the case law and in conventional tax thinking. The unifying principal is the divergence between the possible tax consequences and the clear economic consequences of each of the transactions. The …

An Economic Analysis Of Royalty Terms In Patent Licenses, Michael J. Meurer

Faculty Scholarship

Efficient exploitation of a patent often requires patentees to license users of their inventions. The courts, on the other hand, have proscribed many forms of license agreements and discouraged patent licensing in general, thereby diminishing the efficacy of the patent system as a stimulus to R & D. This negative attitude is attributable to fears that licensing will be used to protect invalid patents and secure illegitimate extensions of monopoly power. Part I of this Note reviews judicial treatment of certain royalty terms in patent licenses, describing the restraints the courts have imposed on the freedom of patentees to license …

Apartheid Baltimore Style: The Residential Segregation Ordinances Of 1910-1913, Garrett Power

Faculty Scholarship

On May 15, 1911, Baltimore Mayor J. Barry Mahool signed into law an ordinance for “preserving the peace, preventing conflict and ill feeling between the white and colored races in Baltimore City.” This ordinance provided for the use of separate blocks by African American and whites and was the first such law in the nation directly aimed at segregating black and white homeowners. This article considers the historical significance of Baltimore’s first housing segregation law.

Fiduciary Law, Tamar Frankel

Faculty Scholarship

In the business realm, the fiduciary duties of partners, corporate directors, and officers originated with the formation of partnerships and corporations, but majority shareholders were not subjected to fiduciary duties until this century. ... As in a status relation, one party to a fiduciary relation (the entrustor) is dependent on the other (the fiduciary). ... For example, a trust is defined as a fiduciary relation in which property is transferred to the trustee. ... A trustee is chosen by the trustor, and must be able to manage the trust assets independently of the beneficiary's control. ... It further shows that …

Modern Unilateral Contracts, Mark Pettit

Faculty Scholarship

Why would anyone write about unilateral contracts today? After all, Karl Llewellyn argued convincingly more than forty years ago' that unilateral contracts are rare and unimportant and should be relegated to the "freak tent. ' 2 Academics, he said, created the "Great Dichotomy" between unilateral and bilateral contracts; lack of support for the unilateral contract idea in the cases required those academics to illustrate the concept with ridiculous hypotheticals about climbing greased flagpoles and crossing the Brooklyn Bridge. The drafters of the Second Restatement of Contracts thus considered it a step forward when they not only minimized the importance of …

From Risk-Utility To Consumer Expectations: Enhancing The Role Of Judicial Screening In Product Liability Litigation, Aaron Twerski

Faculty Scholarship

No abstract provided.

Elimination Of Automatic Judgment Liens In Missouri, William H. Henning

Faculty Scholarship

The traditional automatic judgment lien on real property following rendition of a money judgment has been statutorily eliminated. Judgment liens are now dependent upon the filing of an abstract of the judgment by the court clerk, but the implementing legislation contains ambiguities that raise issues regarding the scope of such liens.

No Light At The End Of The Pipeline: Confusion Surrounds Legislative Courts, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Institutional Litigation In The Post-Chapman World, Susan Herman

Faculty Scholarship

No abstract provided.

Mobile Homes?--Public And Private Controls, Robert L. Schwartz

Faculty Scholarship

The mobile home of today is a far different creature than that from which it was bred. Changes in size, appearance, safety, convenience, and desirability as a place to live have caused the modem mobile home to bear little resemblance to its ancestors. Functioning as a permanently emplaced dwelling, the mobile home has come to be recognized as undeserving of the label "mobile." Other than by place of manufacture, mobile homes have become increasingly indistinguishable from conventional single family dwellings, raising the question of whether mobile homes can reasonably be restricted from areas reserved for single family dwellings. Land controls, …

Equal Divisions In The Supreme Court: History, Problems, And Proposals, William L. Reynolds, Gordon G. Young

Faculty Scholarship

No abstract provided.

Clinical Education In The Seventies: An Appraisal Of The Decade, Robert J. Condlin

Faculty Scholarship

Presentation to the Clinical Section of the Association of American Law Schools.

The Origins Of Freedom Of Speech And Press, David S. Bogen

Faculty Scholarship

No abstract provided.

Book Review: Speech And Law In A Free Society, David S. Bogen

Faculty Scholarship

No abstract provided.

The Moral Failure Of Clinical Legal Education, Robert J. Condlin

Faculty Scholarship

No abstract provided.

Meaningful Reform Of Plea Bargaining: The Control Of Prosecutorial Discretion, Donald G. Gifford

Faculty Scholarship

No abstract provided.

The Minnesota Commitment Act Of 1982 Summary And Analysis, Eric S. Janus, Richard M. Wolfson

Faculty Scholarship

Minnesota law governing commitments has been substantially

revised and recodified in the Minnesota Commitment Act of 1982.

The prior law is repealed and the new law is substituted for it effective

August 1, 1982.

This article has three purposes. First, the significant changes in

the civil commitment law are identified and their implications explored.

Second, where appropriate, the legal background underlying

the changes is explored in order to place the changes in context.

Third, the article identifies ambiguities and inconsistencies in the

Act, posits resolutions, and suggests areas for legislative attention.

Constitutional Politics: A Rejoinder, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.

Reference Theory And The Future Of Legal Reference Service, Richard A. Danner

Faculty Scholarship

No abstract provided.

In Defense Of Equality: A Reply To Professor Westen, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Management Of Multiparty Toxic Tort Litigation: Case Law And Trends Affecting Case Management, Francis Mcgovern

Faculty Scholarship

No abstract provided.

A Constitutional Analysis Of Ohio's New Drunk Driving Law, Donald G. Gifford, Howard M. Friedman

Faculty Scholarship

Ohio's recently revised DUI law faces a wide variety of challenges on constitutional grounds. Professors Gifford and Friedman describe these constitutional arguments and evaluate their merit by considering both broader constitutional principles and persuasive precedents in jurisdictions with similar statutes. In addition to their analysis of the statute's constitutionality, Professors Gifford and Friedman explore other constitutional issues likely to arise from the enforcement of the statute including ones concerning the implied consent provision, breath tests and the use of motions in limine by defendants in drunk driving prosecutions.

When Death Is The Issue: Uses Of Pathological Testimony And Autopsy Reports At Trial, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

The Creeping Eruption Of Mt. Healthy, Morell E. Mullins Sr.

Faculty Scholarship

No abstract provided.

The All-Time All-Star All-Era Supreme Court, James E. Hambleton

Faculty Scholarship

A lot of people have come up with lists of "great" judges. Here's the list to end all lists: a distillation of everyone's choice for the greatest justices of the United States Supreme Court.

Computers And The Law, James Hambleton, David Matone

Faculty Scholarship

The Computer can manipulate information and retrieve it in ways which traditional sources of legal research cannot. Using a traditional legal research book, the attorney is tied to the indexing and abstracting which the legal editor has used. Searching for a case on Ford Pinto crashes, where does the attorney start? Are these cases indexed under "Automobiles," "Products Liability," or "Torts?" The attorney has to second guess the indexer.

Using the computer, the attorney is not tied to any indexing system. Rather than containing just digest paragraphs or abstracts, the computer database holds the full text of case decisions. By …

Free Speech And Intellectual Values, Lee C. Bollinger

Faculty Scholarship

In the preface to his book, The Negro and the First Amendment, Harry Kalven observed that the idea of free speech was marked by an unusually keen "quest for coherent general theory." Every area of the law, Kalven puzzled, was rife with inconsistency and ambiguity, yet inexplicably there was little tolerance· for anomalies in the field of free speech. As to why this was so, Kalven speculated that "free speech is so close to the heart of democratic organization that if we do not have an appropriate theory for our law here, we feel we really do not understand the …

Fairness In Rate Cuts In The Individual Income Tax, Alan L. Feld

Faculty Scholarship

The Economic Recovery Tax Act of 1981 (the 1981 Act) made significant changes in federal income, estate, and gift taxation, touching virtually every taxpayer.¹ The centerpiece of the 1981 Act consisted of rate reductions in the individual income tax.² These reductions, said to average 23%, served a number of different but related objectives. First, those in favor of the tax cuts posited that all taxpayers would benefit from equitable, across-the-board reductions in an excessive and growing tax burden.³ Related to this objective was an anticipated reduction in the size of the federal government, because less tax money …