Law Commons^™

Developing An Identity Of Responsible Lawyering Through Experiential Learning, Homer C. La Rue

UC Law Journal

Professor La Rue explores the use of student lawyering experiences in the development of a responsible professional identity. He shows how it is possible, through the selection of practice settings that situate students side-by-side with subordinated people, for students to understand law as a multidimensional enterprise. His goal is to help us understand law as a translation of human stories and to recognize how this translation involves value laden choices that have the effect of silencing certain voices.

When First Amendment Values And Competition Policy Collide: Resolving The Dilemma Of Mixed-Motive Boycotts, Kay P. Kindred

Scholarly Works

In a representative democracy, government must protect the rights of its citizens to express ideas, to voice grievances, and to seek to influence government. The first Amendment safeguards these fundamental political rights from government intrusion. In a free market economy, government must protect trade and commerce from activities and influences that lead to increased concentrations of economic power or that otherwise tend to restrain competition. The antitrust laws, specifically the Sherman Act, seek to safeguard the competitive process from restrictive trade practices. Conflict arises when efforts to influence government threaten to undermine competition.

Nowhere is the clash between First Amendment …

Postmodern Constitutionalism As Materialism, Francis J. Mootz Iii

Scholarly Works

Professor J.M. Balkin’s recent essay in Michigan Law Review assesses the implications that postmodernism holds for constitutional law. Although I agree with Balkin about many of the specific issues that he believes must be addressed in a postmodern constitutionalism, I find that his manner of talking about postmodernism is unproductive in an important way. Balkin quite correctly argues that a postmodern constitutionalism should not mimic the fragmented and superficial culture of postmodernity, nor should it devolve simply to normative claims that postmodernity is desirable and should be embraced or adopted within the law. However, Balin’s thesis that a postmodern constitutionalism …

Reed Dickerson’S Originalism — What It Contributes To Contemporary Constitutional Debate, Thomas B. Mcaffee

Scholarly Works

In this article the author offers his personal gratitude for the work of Reed Dickerson, along with some thoughts on his important contributions to our understanding of the interpretive process. As a young scholar in need of help in grappling with the continuing debate over constitutional interpretation, the author turned, at the suggestion of colleagues, to Reed Dickerson’s impressive book on statutory interpretation. The hours spent attempting to ingest Reed’s thoughtful work were amply rewarded, and the author took the occasion of publishing an article on the original intent debate to refer in an initial footnote to his intellectual debt …

The Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee

Scholarly Works

The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is no question that this Amendment was designed as a savings clause, to ensure that the specification of particular rights would not raise an inference that the Bill of Rights exhausted the rights which the people held as against the newly-created national government. But there is an ongoing debate as to nature of these additional rights retained by the people and as to the sort of claim they might support against the exercise …

Honoring The Law In Communities Of Force: Wildman And Terrell's Teleology Of Practice, Linda H. Edwards, Jack L. Simmons

Scholarly Works

When King & Spalding publicly reflects upon itself, through its Managing Partner and its Director of Professional Development, it has improved our profession. All of us profit when a powerful law firm searches for itself. But reflection alone, as Terrell and Wildman know, does not improve the professionalism or the morality of our practice. In order for reflection to work this way it must be based upon a good teleology. Terrell and Wildman offer a teleology of practice in which lawyers are to become people who honor the law. This is justified, they tell us, because the law alone holds …

Where Were The Lawyers?, Mary E. Berkheiser, Ed Hendricks

Scholarly Works

In March 1992, the Office of Thrift Supervision sent shock waves through the legal community when it initiated a $275 million enforcement actions against New York’s Kaye, Scholer, Fierman, Hays & Handler and froze the firm’s assets, all based on the firm’s alleged misdeeds in representing the now-defunct Lincoln Savings & Loan. The OTS action, together with the recent spate of prefessional liability suits by the Resolution Trust Corporation and the Federal Deposit Insurance Corporation, raises questions with far-reaching consequences for the legal profession. Perhaps most disturbing, particularly in light of the OTS’s unprecedented assault on Kaye, Scholer, is the …

The Social Construction Of A Rape Victim: Stories Of African-American Males About The Rape Of Desiree Washington, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Has The Supreme Court Allowed The Cure For De Jure Segregation To Replicate The Disease?, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Need For An International Criminal Court In The New International World Order, Christopher L. Blakesley

Scholarly Works

Any inquiry into the merits of an international criminal court must start with resolving three basic issues:

1. Can the tribunal improve international cooperation in law enforcement, add to the capabilities of the various nations in matters of international criminal law, or contribute in any incremental way to the solution of international and transnational criminal law problems by improving the current practice and enhancing the effectiveness of all concerned?

2. Will the recommended system have a better or equal chance of operating as effectively as the best existing systems of national criminal justice?

3. Will the recommended system improve efficiency …

Judge And Jury Roles In Equivalents Analysis: Commentary On Malta V. Schulmerich Carillons, Mark D. Janis

Articles by Maurer Faculty

In Malta v. Schulmerich Carillons Inc. a divided panel of the Federal Circuit affirmed a JNOV granted on a jury verdict of infringement under the doctrine of equivalents. In so doing, the panel majority confirmed the applicability of guidelines from previous cases for determining the threshold level of evidence necessary to get the equivalents issue to the jury. This paper argues that despite powerful criticism from the dissent, the common sense guidelines articulated in theMalta majority opinion are not only necessary, but are appropriate. Indeed, the paper argues that the Malta guidelines are fundamental to the equivalents analysis, and …

Book Review. This Week On The Talk Shows: The Litigation Explosion, J. Alexander Tanford

Articles by Maurer Faculty

No abstract provided.

Biological Diversity And Environmental Protection: Authorities To Reduce Risk, Robert L. Fischman

Articles by Maurer Faculty

No abstract provided.

Commentary: The Tax Legislative Process -- A Critical Need, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

Thinking About Elephants: Admonitions, Empirical Research And Legal Policy, J. Alexander Tanford

Articles by Maurer Faculty

No abstract provided.

Book Review. Teaching Conflicts, Improving The Odds, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

The Federal Rules Of Evidence After Sixteen Years -- The Effect Of "Plain Meaning" Jurisprudence, The Need For An Advisory Committee On The Rules Of Evidence, And Suggestions For Selective Revision Of The Rules, Aviva A. Orenstein, Edward R. Becker

Articles by Maurer Faculty

No abstract provided.

An "Internal" Critique Of Justice Scalia's Theory Of Statutory Interpretation, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

Worst Things First: Risk, Information, And Regulatory Structure In Toxic Substances Control, John S. Applegate

Articles by Maurer Faculty

Scientific uncertainty is the characteristic problem of toxic substances control, and regulators lack the resources to resolve or significantly reduce uncertainty across all of the risks they must address. For this reason, the Environmental Protection Agency (EPA) has become intensely interested in setting priorities among its responsibilities. EPA lacks, however, a coherent framework within which to implement its findings. In this Article, Professor Applegate proposes that the current regulatory regime for toxic substances be restructured to emphasize thoughtful priority setting rather than unrealistic risk standards and deadlines. In his view, Congress should provide broad parameters for agency action in particular …

A Bargaining Analysis Of American Labor Law And The Search For Bargaining Equity And Industrial Peace, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

No abstract provided.

Judgments From A Choice-Of-Law Perspective, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

Book Review. The Premature Burial Of The Irreparable Injury Rule, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

Bankruptcy In The Seventh Circuit: 1991, Douglass Boshkoff

Articles by Maurer Faculty

No abstract provided.

Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel

Scholarly Works

With only a small risk of overstatement, one could say that sanctions in civil litigation exploded during the 1980s, with the 1983 amendment to Federal Rule of Civil Procedure 11 acting as the principal catalyst. From 1938 until the 1983 amendment, only two dozen or so cases on Rule 11 were reported, with courts rarely imposing sanctions. Although a few cases were notable by virtue of sanction size, prestige of the firm sanctioned, or publicity attending the underlying case, the legal profession largely regarded Rule 11 as a dead letter. In addition, other sanctions provisions, such as Federal Rule of …

Barnes V. Glen Theatre, Inc.: Nude Dancing And The First Amendment Question, Zachary T. Fardon

Vanderbilt Law Review

Erotic dancers Gayle Sutro, Carla Johnson, and Darlene Miller can no longer dance nude in Indiana. In Barnes v. Glen Theatre, Inc. the United States Supreme Court held that Indiana's prohibition of nude dancing did not violate the First Amendment to the United States Constitution. The Court's holding ended years of controversy and debate over Indiana's public indecency statute.

In 1979, in State v. Baysinger, the Indiana Supreme Court held that Indiana's public indecency statute could be used to prohibit nude dancing. The court stated that the statute could not prohibit some larger forms of expression involving the communication of …

On Truth And Shielding In Child Abuse Trials, Jean Montoya

UC Law Journal

Concern for the victims of child abuse has recently swept the nation. This popular mood has led most states and the federal government to enact legislation designed to protect abused children from the strain of testifying at the criminal trials of their assailants. Many of these statutes limit face-to-face confrontation between the witness and defendant, most commonly by using a live video transmission between the courtroom and the child's separate testimonial room. Of course, such procedures implicate a criminal defendant's Sixth Amendment right to confront adverse witnesses. The United States Supreme Court held in Maryland v. Craig that testimony by …

Why Limit A Good Thing--A Proposal To Apply The California Antilapse Statute To Revocable Living Trusts, Rochelle A. Smith

UC Law Journal

Revocable living trusts have become a standard estate planning tool for avoiding the time, expense, and delay of probate. These popular will-substitutes allow donors to pass property at death and achieve the same result as would be obtained through a testamentary disposition. However, whereas California testators are protected by remedial measures such as the lapse and antilapse statutes, revocable living trustors are not. In California, when a devisee predeceases the testator, lapse and antilapse statutes operate together to terminate those gifts that potentially would pass to strangers while saving gifts devised to family members and passing these gifts directly to …

Data Processing And Government Administration: The Failure Of The American Legal Response To The Computer, Paul Schwartz

UC Law Journal

The use of computers to process vast quantities of data is currently a vital aspect of government administration. In order to centralize control over massive government programs, government agencies commonly implement computerized data processing systems that collect and analyze personal information regarding millions of citizens, and make this information available to numerous government officials. Yet, in contrast to many European countries, the development of American law reflects scant awareness of the dangers of this application of computerized data processing. Professor Schwartz attempts to remedy this problem by developing a legal approach to regulating the government's use of computerized data processing …

Balancing Ethical Imperatives And Political Constraints: The Dilemma Of New Democracies Confronting Past Human Rights Violations, Jose Zalaquett

UC Law Journal

Since the early 1980s, newly emerging democracies have been confronting the ethical and political dilemma of how to address a legacy of human rights violations committed by former governments. Unlike the circumstances surrounding the war crimes trials in the wake of World War II, when recently deposed rulers were powerless, in many contemporary political transitions the perpetrators of past abuses continue to wield considerable power. As new governments attempt to repair the damage caused by their predecessors and to prevent the recurrence of human rights violations, they must avoid provoking a backlash.

In his Lecture, Sefior Zalaquett argues that these …

On Formally Undecidable Propositions Of Law: Legal Indeterminacy And The Implications Of Metamathematics, Mark R. Brown, Andrew C. Greenberg

UC Law Journal

Recent articles in the Critical Legal Studies literature claim that results from mathematical logic show that no system of law can be formalized so that every dispute is determinate. Specifically, it has been suggested that G6del's Incompleteness Theorem and the works of Lbwenheim and Skolem inform the question whether the law compels outcomes of cases. Because those results prove that certain formal systems of mathematics are necessarily indeterminate, they might suggest that analogous claims are true of the law.

In their Article, Mr. Greenberg and Professor Brown analyze Gbdel's Incompleteness Theorem in an attempt to determine how, if at all, …