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1991

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Full-Text Articles in Law

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert Nov 1991

Telling Tales In Court: Trial Procedure And The Story Model, Richard O. Lempert

Articles

There are three ways in which stories may figure prominently at trials. First, litigants may tell stories to jurors. Not only is there some social science evidence that this happens, but trial lawyers have an instinctive sense that this is what they do. Ask a litigator to describe a current case and she is likely to reply, "Our story is ... " Second, jurors may try to make sense of the evidence they receive by fitting it to some story pattern. If so, the process is likely to feed back on itself. That is, jurors are likely to build a story based ...


Some Caveats Concerning Dna As Criminal Identification Evidence: With Thanks To The Reverend Bayes, Richard O. Lempert Nov 1991

Some Caveats Concerning Dna As Criminal Identification Evidence: With Thanks To The Reverend Bayes, Richard O. Lempert

Articles

The conference panel at which this paper was originally presented was structured along the lines of a debate. The three speakers who were supposed to advocate the use of DNA evidence were labeled, as is customary, Proponents. But those who were supposed to take the negative side were not called Opponents. Rather they were labeled Caveators. I do not know who is responsible for this label, but I think it gets things exactly right. To my mind anyone considering DNA as criminal identification evidence should be a Caveator. The promise and utility of DNA analysis in identifying the perpetrators of ...


Law And Society In A New South Community: Durham County, North Carolina, 1898-1899, James L. Hunt Oct 1991

Law And Society In A New South Community: Durham County, North Carolina, 1898-1899, James L. Hunt

Articles

No abstract provided.


Copyright As Myth, Jessica D. Litman Sep 1991

Copyright As Myth, Jessica D. Litman

Articles

It has become fashionable to seek to formulate, or reformulate, copyright law as an expression of overarching grand theory. Perhaps the most prominent manifestation of this trend has been the recasting of copyright law in the mold of economic incentives; a more recent upstart competitor seeks to reclaim the debate by invoking the philosophical precepts of Hohfeld, Hegel and Locke. Occasionally, the literature gives us polite debates about which of the competing theoretical models is more misguided. Meanwhile, another voice in the copyright literature has been complaining that the law is remarkably unaccommodating of the actual process of creating works ...


Fragile Gains: Two Centuries Of Canadian And United States Policy Toward Indians, Ralph W. Johnson Jul 1991

Fragile Gains: Two Centuries Of Canadian And United States Policy Toward Indians, Ralph W. Johnson

Articles

The United States and Canada share a common history in their policies toward and legal treatment of the Native Americans that historically have occupied both countries. The Royal Proclamation of 1763 established a policy of recognizing Aboriginal title and treating with Indians that was binding on the colonies that preceded both countries, and influenced both governments in later dealings with tribes. Assimilationist themes are evident as well in the national policy toward Indians in both countries. Nevertheless, historically and in the present, national policies and laws of the two governments can be contrasted. This Article sets forth a detailed comparison ...


Oil And The Public Trust Doctrine In Washington, Ralph W. Johnson Apr 1991

Oil And The Public Trust Doctrine In Washington, Ralph W. Johnson

Articles

The tragic spill of millions of gallons of oil into Alaska's Prince William Sound alerted the people of Washington to the danger of spills in Puget Sound. In Washington, the danger heightens as the amount of oil transported through the Sound increases. Indeed, Coast Guard figures show about 1,500 tanker movements in Puget Sound in 1988, a 50 percent increase over 1974.2 Moreover, the spill from the Exxon Valdez taught us that, because very little can be done after a spill, the only truly effective means of preventing damage from oil spills is to prevent them in ...


Guilty Of The Crime Of Trust: Nonstranger Rape, Beverly Balos, Mary Louise Fellows Jan 1991

Guilty Of The Crime Of Trust: Nonstranger Rape, Beverly Balos, Mary Louise Fellows

Articles

Current law allows defendants to use a preexisting relationship to give credibility to a defense of consent or reasonable, good faith belief of consent. However, the law acknowledges various connections between people and recognizes that under certain circumstances it is appropriate both to prevent a person from acting and to require a person to act. If courts applied the doctrine of confidential relationships to acquaintance rape, evidence of the relationship would impose upon the defendant a heightened duty of care to the victim. This heightened duty of care would change the mental element of the crime. It would also change ...


Employee Handbooks And The Legal Effect Of Disclaimers, Stephen F. Befort Jan 1991

Employee Handbooks And The Legal Effect Of Disclaimers, Stephen F. Befort

Articles

In his article, Professor Befort discusses the use of employee handbook disclaimers in the workplace. He begins the article with an examination of the employment-at-will rule, its history, and exceptions which recently have been utilized by courts that refuse to apply the rule under certain conditions. He then turns to the use of handbook disclaimers and explores the varying contexts in which courts agree or decline to enforce them. Finally, Professor Befort offers a somewhat different approach which takes into account both the benefits employers derive from the use of handbooks and the reasonable expectations they instill in employees.


The Effectiveness Of International Human Rights Pressures: The Case Of Argentina, 1976-1983, David Weissbrodt, Maria Luisa Bartolomei Jan 1991

The Effectiveness Of International Human Rights Pressures: The Case Of Argentina, 1976-1983, David Weissbrodt, Maria Luisa Bartolomei

Articles

One significant gap in the burgeoning academic literature of international human rights law is the lack of research related to the impact of international and national procedures on the actual protection of human rights. 1 It is remarkable that almost no academics or activists have even attempted to assess the effectiveness of human rights measures. Of course, demonstrating effectiveness in any area of human endeavor, particularly international human rights work, is very difficult. Many human rights advocates investigate abuses and write letters to governments because they believe that speaking out is better than remaining silent in the face of repression ...


Wills And Trusts: "The Kingdom Of The Fathers", Mary Louise Fellows Jan 1991

Wills And Trusts: "The Kingdom Of The Fathers", Mary Louise Fellows

Articles

The purpose of my talk today is to use doctrines in wills and trusts law as the yardstick with which to measure the Kingdom of the Fathers. I will show that wills and trusts law has always and 2 continues to operate to preserve and sustain their Kingdom.


The Transformation Of The Juvenile Court, Barry C. Feld Jan 1991

The Transformation Of The Juvenile Court, Barry C. Feld

Articles

Ideological changes in the cultural conception of children and in strategies of social control during the nineteenth century led to the creation of the juvenile court. At the dawn of the twentieth century, Progressive reformers applied the new theories of social control to the new ideas about childhood and created a social welfare alternative to criminal courts to treat criminal and noncriminal misconduct by youth.


The Interplay Of Product Definition, Design And Trade Dress, Daniel J. Gifford Jan 1991

The Interplay Of Product Definition, Design And Trade Dress, Daniel J. Gifford

Articles

In the present Essay, I discuss some of the roles played by trademark law in stimulating competition among producers to develop new varieties of products and services. I argue that trademarks perform a particularly useful role in engendering innovation, and that this role was, for a time, threatened by the particular approach to genericity followed by the Ninth Circuit in its well-known Anti-Monopoly 1 decisions. I also argue that the developing law of trade dress performs a different, but nonetheless complementary, role in encouraging innovation.


Adjudication In Independent Tribunals: The Role Of An Alternative Agency Structure, Daniel J. Gifford Jan 1991

Adjudication In Independent Tribunals: The Role Of An Alternative Agency Structure, Daniel J. Gifford

Articles

Much present-day administrative adjudication takes place in a procedural context which is significantly different from that of the traditional regulatory agency. 1 In agency proceedings ranging from administrative enforcement under the Occupational Safety and Health Act to the resolution of claims under the veterans benefits acts, adjudication is conducted by tribunals which are practically and often formally independent of the administering or enforcement authority. Appeals or review functions are performed either by other independent administrative bodies or the courts. In the classic regulatory agencies the opposite was the case. In those agencies, the agency head invariably held the power of ...


Justice By Geography: Urban, Suburban, And Rural Variations In Juvenile Justice Administration, Barry C. Feld Jan 1991

Justice By Geography: Urban, Suburban, And Rural Variations In Juvenile Justice Administration, Barry C. Feld

Articles

Despite statutes and rules of statewide applicability, juvenile justice administration varies consistently with urban, suburban, and rural social structure and context. In urban counties, which are more heterogenous and diverse, juvenile justice intervention is more formal, bureaucratized, and due process-oriented. Formality is associated with greater severity in pre-trial detention and sentencing practices. By contrast, in more homogeneous and stable rural counties, juvenile courts are procedurally less formal and sentence youths more leniently. The Article explores the implications of "justice by geography" for juvenile justice policy.


Shareholder Rights And Legislative Wrongs: Toward Balanced Takeover Legislation, John H. Matheson, Brent A. Olson Jan 1991

Shareholder Rights And Legislative Wrongs: Toward Balanced Takeover Legislation, John H. Matheson, Brent A. Olson

Articles

In recent years, there has been a significant increase in the number of hostile share acquisitions of American businesses. The authors examine the validity of the various defensive measures employed by target companies to defeat or deter a hostile takeover bid. They argue that antitakeover activity should not be viewed as a separate subset of legal analysis; rather, it should be analyzed according to four traditional principles of corporate governance: (1) the discretion afforded corporate management by the business judgment rule; (2) the prohibition against discriminating between members of the same class of shareholders; (3) the prohibition against shifting control ...


The 42nd Session Of The Sub-Commission On Prevention Of Discrimination And Protection Of Minorities, Reed Brody, Maureen Convery, David Weissbrodt Jan 1991

The 42nd Session Of The Sub-Commission On Prevention Of Discrimination And Protection Of Minorities, Reed Brody, Maureen Convery, David Weissbrodt

Articles

The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities began its forty-second session' on 6 August 1990 under unusual pressure; meeting four days after Iraq's invasion of Kuwait, it faced a tense world situation with an overcrowded agenda of studies and human rights violations in particular count


Major Developments At The Un Commission On Human Rights In 1991, Penny Parker, David Weissbrodt Jan 1991

Major Developments At The Un Commission On Human Rights In 1991, Penny Parker, David Weissbrodt

Articles

The forty-seventh session of the United Nations Commission on Human Rights met from 28 January to 8 March 1991. The session, overshadowed by the then ongoing Persian Gulf War, was the last before Commission membership was raised from forty-three to fifty-three to remedy the under-representation of developing countries. Discussions about a restructured agenda, as well as the possible need for additional meetings and more financial resources, were held in connection with this future enlargement of the Commission. The Commission adopted eighty-two resolutions and ten decisions, of which sixty-six resolutions and nine decisions were by consensus.(1) Among the most significant ...


Of Spoil Pits And Swimming Pools: Reconsidering The Measure Of Damages For Construction Contracts, Carol Chomsky Jan 1991

Of Spoil Pits And Swimming Pools: Reconsidering The Measure Of Damages For Construction Contracts, Carol Chomsky

Articles

To obtain a remedy in a breach of contract suit, a party must prove, and courts must determine, what damage the breach has caused. The general rule is straightforward: A party injured by a breach of contract is entitled to be placed in as good a position as if the contract had been performed.1 Ap- plying the general rule to specific circumstances - computing what it means to be placed in "as good a position as if the con- tract had been performed" - is more difficult.


Musings On A Clinic Report: A Selective Agenda For Clinical Legal Education In The 1990'S, Stephen F. Befort Jan 1991

Musings On A Clinic Report: A Selective Agenda For Clinical Legal Education In The 1990'S, Stephen F. Befort

Articles

These are the alleged decline in live-client clinical education, the educational objectives of clinical education, the financing of clinics, the appropriate status for clinical faculty, and the relationships between clinical and nonclinical faculty. The report revealed that student demand for clinical instruction has not declined. It also identified eight pedagogical goals and a public-service goal for live-client clinical education. In addition, it recommended a strong effort to obtain increased financial support through Federal grants. Furthermore, it noted that the status of clinical faculty has improved considerably at many law schools, but the issue of faculty status will continue to be ...


The Future Of Legal Education, Robert Stein Jan 1991

The Future Of Legal Education, Robert Stein

Articles

The subject of this Essay is the future of legal education. The essay is an adaptation of my inaugural lecture as William S. Pattee Professor of Law,' a professorship named after an ex- traordinary man who served as the first Dean of the University of Minnesota Law School.2


Public Prosecution And Hydro-Engineering, Michael Tonry Jan 1991

Public Prosecution And Hydro-Engineering, Michael Tonry

Articles

There are inherent tensions between conceptions of public prosecutors as elected officials who respond to public intolerance of crime and criminals and as officers of the court who answer to normative injunctions of fairness and dispassion. Discussion of prosecutors' roles has progressed little beyond recognition of inherent tensions. There is no literature on prosecutorial strategies. The empirical literature on prosecutorial operations is scant.


A Reminiscence About The Uniform Marriage And Divorce Act - Some Reflections About Its Critics And Its Policies, Robert Levy Jan 1991

A Reminiscence About The Uniform Marriage And Divorce Act - Some Reflections About Its Critics And Its Policies, Robert Levy

Articles

No abstract provided.


Defendant Amenability To Treatment Or Probation As A Basis For Departure Under The Minnesota And Federal Sentencing Guidelines, Richard Frase Jan 1991

Defendant Amenability To Treatment Or Probation As A Basis For Departure Under The Minnesota And Federal Sentencing Guidelines, Richard Frase

Articles

No abstract provided.


Mandatory Minimum Penalties And The U.S. Sentencing Commission's "Mandatory Guidelines", Michael Tonry Jan 1991

Mandatory Minimum Penalties And The U.S. Sentencing Commission's "Mandatory Guidelines", Michael Tonry

Articles

No abstract provided.


Sentencing Reform In Minnesota, Ten Years After: Reflections On Dale G. Parent's Structuring Criminal Sentences: The Evolution Of Minnesota's Sentencing Guidelines, Richard Frase Jan 1991

Sentencing Reform In Minnesota, Ten Years After: Reflections On Dale G. Parent's Structuring Criminal Sentences: The Evolution Of Minnesota's Sentencing Guidelines, Richard Frase

Articles

No abstract provided.


Legal Education: An Illusion, Judith T. Younger Jan 1991

Legal Education: An Illusion, Judith T. Younger

Articles

No abstract provided.


Bfoq Revisited: Johnson Controls Halts The Expansion Of The Defense To Intentional Sex Discrimination, Stephen F. Befort Jan 1991

Bfoq Revisited: Johnson Controls Halts The Expansion Of The Defense To Intentional Sex Discrimination, Stephen F. Befort

Articles

The bona fide occupational qualification (BFOQ) is a statutory defense to intentional discrimination under Title VII. 1 The BFOQ defense permits an employer to adopt an otherwise facially discriminatory employment practice if "reasonably necessary to the normal operation of that particular business. . . ." 2 Both the courts and the Equal Employment Opportunity Commission (EEOC) have traditionally interpreted this defense very narrowly. A gender-based employment classification, for example, qualifies as a BFOQ only if the failure to adopt a single-sex policy undermines the employer's ability to accomplish its essential business mission. 3


The Case For Integrated Pollution Control, Lakshman Guruswamy Jan 1991

The Case For Integrated Pollution Control, Lakshman Guruswamy

Articles

No abstract provided.


Specialized Courts In Administrative Law, Harold H. Bruff Jan 1991

Specialized Courts In Administrative Law, Harold H. Bruff

Articles

No abstract provided.


In Memoriam: Prior Appropriation, 1848-1991, Charles F. Wilkinson Jan 1991

In Memoriam: Prior Appropriation, 1848-1991, Charles F. Wilkinson

Articles

No abstract provided.