Law Commons^™

The Supreme Court, Liberty, And Abortion, George J. Annas

Faculty Scholarship

Abortion has aroused intense personal and political passions for almost two decades in the United States, and demeaning sloganeering has long substituted for reasoned discourse. Just as few people have actually read the 1973 ruling in Roe v. Wade, few people who have expressed their opinion on the Supreme Court's ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, which has been condemned by activists on both sides of the debate about abortion rights, have read it. In one poll, however, more than 70 percent of Americans agreed with the restrictions upheld by the Court as they understood …

Health Warnings, Smoking, And Cancer - The Cipollone Case, George J. Annas

Faculty Scholarship

The figures have become familiar. Tobacco use has been declared "the single most important preventable cause of [premature] death in the United States, accounting for one of every six deaths, or some 390,000 deaths annually. "The health goals of the nation for the year 2000 call for reducing the prevalence of cigarette smoking to 15 percent among adults (a 48 percent decrease from the current 29 percent) and reducing the rate of beginning smoking among teenagers to 15 percent (a 50 percent decrease from the current rate of 30 percent). The goal of reducing smoking in the United States is …

Adding Injustice To Injury - Compulsory Payment For Unwanted Treatment, George J. Annas

Faculty Scholarship

A New York court this year issued one of the most disturbing and aberrant appellate opinions of the past two decades concerning the right to refuse treatment.1 In my view, the judges ruling in Grace Plaza v. Elbaum made a series of errors: they assumed that institutions can have ethics apart from those of their physicians; they believed that both institutions and physicians are primarily motivated by money; and they approved the use of legal threats by institutions and physicians against patients and their families. In this court's idiosyncratic view, dying and medical care seem to be not about …

Setting Standards For The Use Of Dna-Typing Results In The Courtroom — The State Of The Art, George J. Annas

Faculty Scholarship

DNA typing, sometimes called DNA fingerprinting or profiling, has been the focus of heated exchanges in courtrooms, the popular press, and scientific journals. It is a powerful law-enforcement weapon, especially in cases of rape, because it has the potential to exonerate a suspect or to place him at the scene of a crime. On the other hand, it is of no use in rape cases like those in which William Kennedy Smith and Mike Tyson were accused, in which coitus is conceded to have occurred and the only real issue is consent. When should judges permit evidence from DNA typing …

Changing The Consent Rules For Desert Storm, George J. Annas

Faculty Scholarship

Shortly before the beginning of Operation Desert Storm, during Desert Shield, the U.S. military sought a waiver of requirements for informed consent for the use of investigational drugs and vaccines on our troops in the Persian Gulf. The danger of chemical and biologic warfare was seen as demanding this waiver, although the Nuremberg Code, other codes of medical ethics, and respect for the human rights of American soldiers seemed to caution against it. One year later it seems reasonable to review this decision. The legal maneuvering to revise consent regulations for wartime conditions provides a case study that highlights three …

Socially Responsible Investing In An Inefficient Market: Doing Good Versus Doing Well, Maria O'Brien

Faculty Scholarship

The debate about the desirability and efficacy of socially responsible investing (SRI) is about as old as the practice of investing itself. Indeed, in spite of a persistent inability on the part of all participants in the debate to develop a simple, coherent definition of what is meant by socially responsible investing, the debate continues. Many funds that purport to engage in SRI have surprisingly little in common. However, if a single political issue could be said to have attracted the attention of virtually every socially responsible fund currently in existence, it would have to be South Africa's abhorrent practice …

The Internalization Paradox And Workers' Compensation, Keith N. Hylton, Steven E. Laymon

Faculty Scholarship

By providing a scientific link between the compensatory and deterrence goals of tort law, the Pigovian theory of externalities has had an enormous influence on modem torts scholarship and tort doctrine.

Is The Constitutional Concern With Religious Involvement In The Public Square Hostility?, William P. Marshall

Faculty Publications

No abstract provided.

Child Abuse Reporting Laws And Attorney-Client Confidences: The Reality And The Specter Of Lawyer As Informant, Robert P. Mosteller

Faculty Publications

No abstract provided.

I Can't Believe I Taped The Whole Thing: The Case Against Vcrs That Zap Commercials, Steven S. Lubliner

UC Law Journal

In Japan, one may now purchase a VCR that can distinguish between the programming and the advertisements, with the result that commercials are not recorded. The threat to television advertising there has led to a standoff between manufacturers of such VCRs and the Tokyo Broadcasting System. Such a machine is not currently available in the United States, but its development is anticipated, and its arrival is being planned for by advertisers.

This Note assumes that VCRs with "automatic commercial avoidance" technology will be introduced in the United States and examines their legal significance in light of policies in the Federal …

Interpreting Sacred Texts: Preliminary Reflections On Constitutional Discourse In China, Janet E. Ainsworth

UC Law Journal

The 1982 Constitution of the People's Republic of China provides the foundation for a nation governed by the rule of law rather than by Party fiat. It remains unclear whether and to what extent this ambitious Constitution will be implemented in practice. In her Article, Professor Ainsworth asserts that the way in which Western scholars to date have analyzed Chinese constitutions demonstrates the ethnocentric assumptions inherent in Western scholarship.

Professor Ainsworth suggests that Chinese constitutional discourse needs to be understood in a Chinese context, requiring a historical study of the traditional Chinese exegetical methodology used in interpreting the Confucian Classics. …

The Bendectin Litigation: A Case Study In The Life Cycle Of Mass Torts, Joseph Sanders

UC Law Journal

Mass torts are more than simple groupings of similar, but independent products liability suits; rather, they involve "congregations" of cases that may be profitably analyzed as units. In this Article, Professor Sanders examines the Bendectin litigation from the case congregation perspective. The key question in the Bendectin Cases has been the causation issue--does Bendectin actually cause birth defects? Consequently, Professor Sanders looks at more than just law; he also examines the scientific studies of Bendectin. The examination reveals that, like the cases, these studies have evolved over time. And from an even broader perspective, he illustrates how the law and …

Nonretroactivity In Constitutional Tax Refund Cases, Carl D. Ciochon

UC Law Journal

A recent series of cases decided by the United States Supreme Court point out a classic conflict between individual rights and state interests. The cases revolve around a simple question-whether a state will be required to refund monies collected under an unconstitutional taxing scheme. While the question itself is straightforward, the Court's current approach is characterized by conflict and uncertainty. In McKesson v. Division of Alcoholic Beverages & Tobacco, it declared unanimously that the Due Process Clause of the Fourteenth Amendment requires the states to provide meaningful backward looking relief for any unconstitutional deprivation. But McKesson's seemingly clear mandate leads …

Shared Interests: Promoting Healthy Births Without Sacrificing Women's Liberty, Dawn Johnsen

UC Law Journal

In recent years, legislatures, courts, and state prosecutors increasingly have sought to impose special restrictions on women who choose to bear children. While the government certainly has a legitimate interest in promoting the birth of healthier babies, the specific policies implemented in pursuit of this laudable goal pose a significant and growing threat to women's fundamental liberties. In this Article Ms. Johnsen examines the relative merit of two models of governmental action aimed at women: the adversarial model, which treats the woman and the fetus as distinct legal entities having adverse interests; and the facilitative model, which recognizes that women …

Chronic Drug Users As Parents, Judy Howard

UC Law Journal

In her Essay Dr. Howard presents a progressive overview of parental drug and alcohol abuse. The Essay surveys general trends in substance abuse, and discusses the chemically dependent lifestyle. Highlighting the disparity between children with developmental problems who are being raised in chemically dependent families and those growing up in families where substance abuse is not an issue, Dr. Howard explains how newborn behavior and developmental patterns of older children are influenced by environmental as well as biological factors. She concludes that comprehensive and coordinated services must be provided by those who work with chemically dependent families and suggests an …

Perinatal Substance Abuse: Personal Triumphs And Tragedies, Nancy Ruhle

UC Law Journal

The problem of perinatal substance abuse is one of complexity, dilemma, and disturbance for the various professionals involved. To resolve the problem, Ms. Ruble argues, we must understand the nature of addiction and become intimately familiar with the experiences of the real women and children involved. From the perspective of a public health nurse, Ms. Ruhle narrates the stories of a sampling of her substance abusing clients and their children. In doing so, she illustrates the complexity of the problem and provides a human context within which to discuss the problem of perinatal substance abuse.

Medical Monitoring Funds: The Periodic Payment Of Future Medical Surveillance Expenses In Toxic Exposure Litigation, Amy B. Blumenberg

UC Law Journal

For many Americans, exposure to toxic substances has become a sad reality of life. While the medical and scientific communities have recognized the need for timely presymptom, postexposure medical diagnosis to detect and treat exposure-related diseases, the legal community has responded more slowly to the problems faced by toxic exposure victims. Nonetheless, the individual and public health interests in early detection and treatment of exposure-related diseases have motivated an increasing number of courts to recognize claims for presymptom, postexposure medical surveillance. In most such cases litigants have pursued or courts have awarded a traditional common-law lump sum of monetary damages. …

Beyond Cut Flowers: Developing A Clinical Perspective On Critical Legal Theory, Phyllis Goldfarb

UC Law Journal

In her Essay Professor Goldfarb examines the relationship between clinical legal education and critical legal theory. She highlights the resemblances between the two movements while elaborating a clinical educator's perspective on and critique of some of the ideas associated with critical legal studies.

As the heirs to different versions of legal realism--critical legal studies being associated with "rule skepticism," and clinical legal education with "fact skepticism"-both are engaged in a project of theoretical deconstruction. For each the goal of this project is to generate a climate favorable to social change. Professor Goldfarb, however, argues that much of the cls perspective, …

Disabled Clients, Disabling Lawyers, Anthony V. Alfieri

UC Law Journal

People with disabilities, especially the impoverished among them, have long been the object of legal advocacy. In the rush of advocacy, lawyers have forgotten that the concept of the disabled, like the concept of the poor, is an artifact of American law and society. It is a thing mediated through ideals and discourses, a thing constructed rather than naturally or necessarily given. The social construction of disability occurs in the daily practices of advocacy, administration, and adjudication. These material practices form the dominant and subordinate visions of the disabled.

The dominant vision of the disabled conjures images of dependence, incompetence, …

Rebellious Lawyering, Regnant Lawyering, And Street-Level Bureaucracy, Paul R. Tremblay

UC Law Journal

Professor Tremblay's Essay addresses "rebellious" lawyering, that strain of lawyering which empowers clients. His Essay seeks to explore some of the institutional and ethical barriers that prevent easy implementation of this powerful and attractive view of lawyering. He describes two strands within rebellious lawyering literature: the "collectivist" theme, which argues that effective lawyering for the poor must include collective, organizing efforts that look beyond intrasystemic relief; and the "client voice" theme, which encourages collaborative, nonhierarchical participation by clients in their legal casework. While these two themes are present in much of the literature, he believes that in some ways they …

Entering Great America: Reflections On Race And The Convergence Of Progressive Legal Theory And Practice, Margaret M. Russell

UC Law Journal

The relatively recent development of jurisprudence and pedagogy in the areas of critical legal studies, feminism, and critical race theory presents significant opportunities for progressive practitioners and activists. In certain respects, the relationship between these emerging theories and practice is necessarily dialogic and interdependent: progressive lawyers and activists are recognizing with increasing frequency the extent to which creative and compassionate commitment to their work can engender valuable new visions of practice and pedagogy; critical scholars and teachers, in turn, are growing both more cognizant of and more explicit about the nexus between their work and lawyering for social change. Beyond …

The Feminist Transformation Of Lawyering: A Response To Naomi Cahn, Ann Shalleck

UC Law Journal

Professor Cahn persuasively advocates movement beyond identifying as either male or female the different ways of being a lawyer. In her Essay Professor Shalleck explores further three aspects of the feminist transformation of lawyering suggested by Professor Cahn's article. First, despite Professor Cahn's title, a feminist critique of lawyering is not about "styles"; it is about the nature of the lawyer's actions and ways of understanding that activity. Second, the feminist project is not about simply expanding the available ways women and men can act and think as lawyers. This step neither creates new options nor develops effective challenges to …

A Meditation On The Theoretics Of Practice, Robert D. Dinerstein

UC Law Journal

Professor Dinerstein's Essay examines the value and liabilities of the theoretics of practice movement. He tells the tale of a criminal case his clinic handled in which the client insisted on telling an inculpatory story. Tracing the twists of the story and noting the advocates' practices of client-centered counseling and sensitivity to concerns raised by narrative theory, he points out the unpredictable impact of such theories about practice when actually applied.

He criticizes the inaccessibility of much of the theoretics literature and questions the utility of much of it for those who actually practice law. He calls for critical examination …

Empathy And Approval, Stephen Ellmann

UC Law Journal

Professor Ellmann's Essay suggests that the positive judgment latent in empathy need not remain so veiled. On the contrary, clients often need, and lawyers should be able to offer, a more wholehearted confirmation of client feelings-a positive judgment and endorsement, of part or all of the client's world view, that he calls approvaL The functions of such explicit approval are somewhat different from, and potentially inconsistent with, those of empathy. Lawyers can effectively make use of both these techniques, but they are not interchangeable, and a recognition of the potential value of approval not only adds a technique to lawyers' …

Students And Lawyers, Doctrine And Responsibility: A Pedagogical Colloquy, University Of Maryland Law School

UC Law Journal

This Colloquy presents a variety of perspectives on the University of Maryland Law School's Legal Theory and Practice Program. The program has both a clinical and a classroom component, and attempts to expose students to the deep connections between legal rules, lawyers' choices, and the realities of the law's impact on the lives of the poor

Styles Of Lawyering, Naomi R. Cahn

UC Law Journal

In her Article, Professor Cahn explores issues concerning the identification of male and female styles of lawyering. She first examines the elements of what some might label a female style of lawyering-that is, one based on an ethic of care. She then critiques this model and its underlying assumptions. Rather than identifying as female one particular style of lawyering, she believes that many different styles of lawyering exist, and that using feminist legal theory helps uncover these styles, figure out when they are useful in litigation, and how they can help transform litigation.

Professor Cahn also examines the role in …

Keeping The Practice In Clinical Education And Scholarship, Richard A. Boswell

UC Law Journal

In his Essay Professor Boswell traces the progress of the clinical movement from the margins of the academy in the 1960s to its more mainstream position today. He contends that, because of various forces (including the availability of tenure), clinical scholarship has begun to merely emulate traditional scholarship. He notes the shift of clinical emphasis from the client to scholarly development of theoretical models. Professor Boswell calls for a return to the original purpose of clinical programs- bridging the distance between theory and practice.

Reconstructing A Pedagogy Of Responsibility, Barbara Bezdek

UC Law Journal

Professor Bezdek's approach stems from her observation that student learning about responsibility suffers badly from the phenomenon of law school socialization and that counter-socialization is required. She encourages students to ask: What is my own responsibility as a lawyer to people who are poor? She shows how Maryland's Legal Theory and Practice program equips students to recognize and break down the rhetoric that makes both students and lawyers feel helpless in the face of daunting poverty.

The Faces Of Law In Theory And Practice: Doctrine, Rhetoric, And Social Context, Richard Boldt, Marc Feldman

UC Law Journal

Although the Realist critique of Langdellian educational practice has been widely accepted, Professors Boldt and Feldman demonstrate how the impact of this critique is minimized because of the disjointed way in which it is presented in the classroom. They offer an account of an integrated reconception of legal doctrine. They describe their attempts to break down the barriers in legal education and in the legal profession more generally by uncovering the doctrinal and rhetorical strategies employed by actors within the legal system to disclaim the political dimension of law and to reinforce a sense of institutional powerlessness.

Lawyers And Caring: Building An Ethic Of Care Into Professional Responsibility, Theresa Glennon

UC Law Journal

In the last decade, a new literature has arisen, grounded in feminism, reconsidering morality, identity, and moral development. Professor Glennon applies these feminist-based ideas about moral development to a pedagogy of responsibility. She explores some of the ways in which this alternative view of moral development might affect our understanding of teaching. Professor Glennon shows that students must view themselves as capable, cared-for, and empowered in order to achieve an enlarged self-definition of professional responsibility and conceive of themselves as professionals in ways other than the dominant, privatized mode.