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Articles 1 - 30 of 53
Full-Text Articles in Law
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
Faculty Publications
This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters “respecting an establishment of religion.” Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.
Toward An Expanded View Of The Due Process Claim In Entrapment Cases, Paul Marcus
Toward An Expanded View Of The Due Process Claim In Entrapment Cases, Paul Marcus
Faculty Publications
No abstract provided.
The Art Of Regulation Drafting: Structured Discretionary Justice Under Section 355, John W. Lee
The Art Of Regulation Drafting: Structured Discretionary Justice Under Section 355, John W. Lee
Faculty Publications
This article analyzes the 35-year evolution of the section 355 regulations from the perspectives of the jurisprudential dichotomy between general principles and detailed rules and administrative law theory as to agency discretion.
Challenging Discriminatory Guesswork: Does Impact Analysis Apply, Michael A. Middleton
Challenging Discriminatory Guesswork: Does Impact Analysis Apply, Michael A. Middleton
Faculty Publications
This article initially examines the traditional theories of proof in Title VII cases. It then discusses approaches by lower courts in resolving the competing concerns raised in applying those traditional theories in challenges to subjective selection devices. This article next discusses the Supreme Court's resolution of the problem in Watson and suggests a workable alternative resolution that will not undermine the broad prophylactic purposes of Title VII.
Policing Hot Pursuits: The Discovery Of Aleatory Elements, Geoffrey P. Alpert, Roger G. Dunham
Policing Hot Pursuits: The Discovery Of Aleatory Elements, Geoffrey P. Alpert, Roger G. Dunham
Faculty Publications
No abstract provided.
The Moral Foundations Of Punitive Damages, David G. Owen
The Moral Foundations Of Punitive Damages, David G. Owen
Faculty Publications
No abstract provided.
Problematic Standards Of Reasonableness: Qualified Immunity In Section 1983 Actions For A Police Officer's Use Of Excessive Force, Kathryn R. Urbonya
Problematic Standards Of Reasonableness: Qualified Immunity In Section 1983 Actions For A Police Officer's Use Of Excessive Force, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
Conservation At The Crossroads: Reauthorization Of The 1985 Farm Bill Conservation Provisions, Linda A. Malone
Conservation At The Crossroads: Reauthorization Of The 1985 Farm Bill Conservation Provisions, Linda A. Malone
Faculty Publications
No abstract provided.
Emotional Distress, The First Amendment, And This Kind Of Speech: A Heretical Perspective On Hustler Magazine V. Falwell, Paul A. Lebel
Emotional Distress, The First Amendment, And This Kind Of Speech: A Heretical Perspective On Hustler Magazine V. Falwell, Paul A. Lebel
Faculty Publications
No abstract provided.
“The Right Of The People To Be Secure. . .”: Toward A Metatheory Of The Fourth Amendment, Thomas E. Baker
“The Right Of The People To Be Secure. . .”: Toward A Metatheory Of The Fourth Amendment, Thomas E. Baker
Faculty Publications
No abstract provided.
The Case Against The Constitutionally Compelled Free Exercise Exemption, William P. Marshall
The Case Against The Constitutionally Compelled Free Exercise Exemption, William P. Marshall
Faculty Publications
No abstract provided.
Stepping Out Of The Morass Of Duress Cases: A Suggested Policy Guide, Juliet P. Kostritsky
Stepping Out Of The Morass Of Duress Cases: A Suggested Policy Guide, Juliet P. Kostritsky
Faculty Publications
Traditional coercion theories and elements are simply inadequate as an exclusive focus of analysis in duress cases. This Article does not propose a new theory of duress. Instead, it suggests a refinement of doctrine in which the courts candidly articulate certain key policy goals and develop elements based on them. These policy goals include efficiency, disclosure of unexpected risks, judicial capability, reliance, and economic incentives. If decisionmakers adopted the policy analyses suggested here, the predictability of judicial decisionmaking would be enhanced and a supplemental analysis would be available when the doctrinal elements become difficult to apply. Moreover, this approach would …
Expert Witnesses, Paul C. Giannelli
Impeachment Of Witnesses: Part Ii, Paul C. Giannelli
Impeachment Of Witnesses: Part Ii, Paul C. Giannelli
Faculty Publications
No abstract provided.
Impeachment Of Witnesses: Part I, Paul C. Giannelli
Impeachment Of Witnesses: Part I, Paul C. Giannelli
Faculty Publications
No abstract provided.
Toward Unifying Ownership And Control In The Public Corporation, George W. Dent
Toward Unifying Ownership And Control In The Public Corporation, George W. Dent
Faculty Publications
In 1932, Adolf Berle and Gardiner Means published the seminal book, The Modern Corporation and Private Property. This work set forth the thesis that corporate law's central dilemma has been the separation of ownership and control in publicly held corporations. Over the years, the Berle-Means thesis has been tossed aside by critics who argue that economic forces compel managers to act as if the shareholders were in control and by those who welcome the idea that managers are able to exercise their more enlightened business acumen. On the other hand, those who share concerns over the separation of ownership and …
U.S. Supreme Court: The 1988-1989 Term, Paul C. Giannelli
U.S. Supreme Court: The 1988-1989 Term, Paul C. Giannelli
Faculty Publications
No abstract provided.
Proxy Regulation In Search Of A Purpose, George W. Dent
Proxy Regulation In Search Of A Purpose, George W. Dent
Faculty Publications
Changing conditions often force us to rethink the role of a law. Professor Ryan's scholarly article, Rule 14a-8, Institutional Shareholder Proposals, and Corporate Democracy,underscores this need. His article is useful for both its successes and its failures. Its principal failure is its inability to identify a general justification for the rule. This is helpful; the failure of an intelligent and deter- mined advocate to find a persuasive defense of the rule confirms that no defense is possible. The article succeeds principally in showing how institutional investors have recently used the rule in ways that put the rule in a new …
Age-Based Rationing And Technological Development, Maxwell J. Mehlman
Age-Based Rationing And Technological Development, Maxwell J. Mehlman
Faculty Publications
Comment on Daniel Callahan's "Setting Limits."
The Corporate Attorney-Client Privilege: A Study Of The Participants, Vincent C. Alexander
The Corporate Attorney-Client Privilege: A Study Of The Participants, Vincent C. Alexander
Faculty Publications
Empirical research on the practical effects of the attorney-client privilege in the corporate context has been almost nonexistent. This Article seeks to help fill the gap by synthesizing traditional doctrinal analysis with the results of a survey of individuals with first-hand information about the subject: corporate attorneys, corporate management, and federal judges and magistrates. The survey, which consisted of 182 interviews in New York City, produced a broad range of information about some of the assumptions underlying the corporate privilege, the forms and processes of corporate attorney-client communications and the adjudication of privilege claims.
Am I My Borrower's Keeper?, Kerry L. Macintosh
Am I My Borrower's Keeper?, Kerry L. Macintosh
Faculty Publications
Suppose a lender is asked to make a substantial loan to a prospective borrower. The lender possesses information indicating that the borrower will use the loan proceeds to finance an activity that, although legitimate on its face, is conducted in violation of regulatory provisions. Nevertheless, the lender makes the loan because it promises to be profitable. Later the borrower defaults, and the lender goes to court to enforce the debt and realize on its security interest in the borrower's property. There, the borrower raises the regulatory violations as a defense. Imagine the lender's consternation, and probable response: "What business is …
Constitutional Interpretation: Defining Liberty Under The Constitution, David D. Friedman
Constitutional Interpretation: Defining Liberty Under The Constitution, David D. Friedman
Faculty Publications
No abstract provided.
Franchising In Mainland China, Anna M. Han, Christopher Oechsli
Franchising In Mainland China, Anna M. Han, Christopher Oechsli
Faculty Publications
No abstract provided.
Is Griggs Dead? Reflecting (Fearfully) On Wards Cove Packing Co. V. Atonio, Mack Player
Is Griggs Dead? Reflecting (Fearfully) On Wards Cove Packing Co. V. Atonio, Mack Player
Faculty Publications
No abstract provided.
What Hath Patterson Wrought? A Study In The Failure To Understand The Employment Contract, Mack Player
What Hath Patterson Wrought? A Study In The Failure To Understand The Employment Contract, Mack Player
Faculty Publications
No abstract provided.
The Impact Of Proposition 103, George J. Alexander
The Impact Of Proposition 103, George J. Alexander
Faculty Publications
No abstract provided.
The State's Interest In The Preservation Of Life: From Quinlan To Cruzan, Philip G. Peters Jr.
The State's Interest In The Preservation Of Life: From Quinlan To Cruzan, Philip G. Peters Jr.
Faculty Publications
This article considers the kinds of limits on withholding that each of these policies might plausibly support, compares these limits to the judicial approaches taken in the refusal of treatment cases, and explores how apparent conflicts between these state goals and the interests of the patients might be resolved. Because this article focuses exclusively on the state's interests, however, it necessarily isolates and considers only one portion of a complex problem involving the interests of patients, families, providers, and others. No comprehensive examination of the nature and weight of the patient's interests or those of other involved parties is attempted. …
New Developments In Kansas Insurance Law, Robert H. Jerry Ii
New Developments In Kansas Insurance Law, Robert H. Jerry Ii
Faculty Publications
Since 1959 the Kansas Law Review has encouraged commentary on recent developments in Kansas insurance law. This article continues this tradition, examining developments that have occurred during the last five years.
When Can A Grievance Arbitrator Apply Outside Law?, Jay E. Grenig
When Can A Grievance Arbitrator Apply Outside Law?, Jay E. Grenig
Faculty Publications
No abstract provided.
Rhetoric And Retrenchment: Agrarian Ideology And American Bankruptcy Law, David Ray Papke
Rhetoric And Retrenchment: Agrarian Ideology And American Bankruptcy Law, David Ray Papke
Faculty Publications
No abstract provided.