Law Commons^™

Self-Regulation, Normative Choice, And The Structure Of Corporate Fiduciary Law, William W. Bratton

All Faculty Scholarship

No abstract provided.

Confronting The Ethical Case Against The Ethical Case For Constituency Rights, William W. Bratton

All Faculty Scholarship

No abstract provided.

The Death Penalty: A Solution To The Problem Of Intentional Aids Transmission Through Rape, 26 J. Marshall L. Rev. 941 (1993), Stefanie S. Wepner

UIC Law Review

No abstract provided.

Legitimating The Illegitimate: A Comment On 'Beyond Rape', Robin West

Georgetown Law Faculty Publications and Other Works

Professor Dripps's provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our "negative" right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory.

Furthermore, according to Dripps, …

Captive Courts: The Destruction Of Judicial Decisions By Agreement Of The Parties, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

The Brain Gets Sick, Too - The Case For Equal Insurance Coverage For Serious Mental Illness., Brian D. Shannon

St. Mary's Law Journal

Recent brain research has revealed that the major mental illnesses are organic diseases of the brain. Like other organs of the body, the brain can become ill. Dr. E. Fuller Torrey, a psychiatrist whose sister suffers from schizophrenia, has commented that "[t]he evidence that serious mental illnesses are diseases is now overwhelming..." Notwithstanding recent medical findings regarding the organic underpinnings of mental illnesses, private insurers generally do not provide health insurance coverage for the treatment of these brain diseases at the same coverage levels as for other physical illnesses. In fact, "[m]ost private insurers require larger co-payments and set lower …

Criminal Trespass And The Exclusionary Rule In Texas., Paul R. Stone, Henry De La Garza

St. Mary's Law Journal

In State v. Hobbs, the Texas Fourth Court of Appeals held a warrantless intrusion by police onto private property to obtain evidence constitutes criminal trespass under Section 30.05 of the Texas Penal Code. The resulting evidence falls within the exclusionary rule and this article considers whether this protection, which goes beyond constitutional guarantees, is necessary or desirable. The first part of this paper reviews existing federal and state constitutional protections against unreasonable searches. Next, the paper analyzes the history and purpose of criminal trespass and the exclusionary rule in Texas. Finally, the paper considers a question the court of appeals …

Private Property And Russia's Leap Of Faith., Douglas R. Haddock

St. Mary's Law Journal

Popular notions of property are enshrined in constitutional protections which seem to make quite clear society’s emphasis on the individual’s preeminence in matters of property. Americans have never been able to accept the “socialist ownership” notions of the Soviet Union and other socialist countries as a viable scheme of property. It is probably irrefutable that the application of socialist ownership principles in the Soviet Union has been less efficient than the American model of private ownership. Yet, it is reactionary to entirely condemn the idea of socialist ownership and conclude the downfall of the Soviet Union proved the “rightness” of …

The Filing Of An Indictment Against A Criminal Defendant Activates His Sixth Amendment Right To A Speedy Trial, Notwithstanding The Fact That The Defendant Had No Knowledge Of The Indictment Until The Time Of His Arrest., Ronna A. Laidley

St. Mary's Law Journal

In Doggett v. United States, the Supreme Court held the filing of an indictment against a defendant activates his Sixth Amendment right to a speedy trial, notwithstanding the defendant not knowing of the indictment until his arrest. The right to a speedy trial serves to vindicate the rights of individuals who have incurred impediments to their personal liberty because of governmental negligence. The Court stated the Speedy Trial Clause aims to prevent undue and oppressive pre-trial incarceration, limit the anxiety accompanying public accusation, and diminish delays that might cripple a defendant’s ability to prepare an adequate defense. Since Doggett suffered …

The Amazing Three-Headed Limited Partner: Reflections On Old Loopholes And New Jurisprudence, Lisa Philipps

Articles & Book Chapters

No abstract provided.

The Habeas Hagioscope, Larry Yackle

Faculty Scholarship

If you would understand American law, American politics, and the elusive difference between the two, look no further. Federal habeas corpus for state prisoners opens a window on the workings of our national government, overt and covert. I mean in this Article to describe the scene that is revealed. A rich account of experience in recent years can contribute to a deeper understanding of our government by arranging the players and the set in context and sequence. The record will show a number of things to be true.

Transcending Community: Some Thoughts On Havel And Bergson, Brian Slattery

Articles & Book Chapters

No abstract provided.

Property And Small-Scale Privitization In Russia., Richard C. Schneider Jr.

St. Mary's Law Journal

Knowing who owns what suddenly became important in Russia because of dramatic economic and market reforms of the Yeltsin government. The transfer of property, from the state to the private sector is at the heart of the reforms. It is generally recognized the “foundations of a market-based economic system are property rights and private ownership.” The purposes of this article are to (1) summarize reforms which successfully introduced a scheme of private ownership in Russia, as demonstrated by the Nizhny Novgorod experiment, and (2) discuss those property rights which remain unclear. Accordingly, the second and third parts of the article …

Consent Decrees Resulting From Institutional-Reform Litigation May Be Modified Upon Showing A Significant Change In Law Or Fact And A Modification Appropriately Tailored To That Change., Christy J. Lindsay

St. Mary's Law Journal

In Rufo v. Inmates of Suffolk County Jail, the Court held that courts may modify consent decrees resulting from institutional reform litigation upon showing a significant change in law or fact and a modification appropriately tailored to that change. The case of Swift v. United States set a strict standard for modification of consent decrees, requiring movants to demonstrate extreme, unexpected hardship and oppression. However, there is a modem trend toward adopting a more flexible standard. The Court deems the “flexible test” as particularly appropriate in the case of the institutional reform consent decree because of its speculative, long-term nature. …

Industrialization In The Borderlands And The Nafta Treaty., Phillip D. Hardberger

St. Mary's Law Journal

Abstract Forthcoming.

The Arbitration Of Private Commercial Disputes Between Residents Of Texas And Mexico., Wayne I. Fagan, Carlos Gabuardi Arreola

St. Mary's Law Journal

This paper evaluates whether the Texas International Arbitration Act (TIAA) will be a helpful addition to the laws governing arbitration of private commercial disputes between residents of Texas and Mexico. Owing to differences among cultures, languages, and legal systems, attorneys in the United States and in Mexico are turning to binding arbitration for the resolution of international disputes. Texas enacted an International Arbitration Act in 1989 to foster expanded international trade and facilitate resolution of international commercial disputes through conciliation and arbitration. Proponents of international arbitration argue it is the method of choice for resolution of private commercial disputes due …

The Meat And Potatoes Of The North American Free Trade Agreement., Ruth K. Agather, Timothy N. Tuggey

St. Mary's Law Journal

Agricultural trade has always been particularly susceptible to governmental intervention and imposition of protectionist barriers. This Article explores the evolution of agricultural trade regulation between the United States and Mexico culminating in the proposed North American Free Trade Agreement (NAFTA). First, the Article reviews the existing regulatory framework governing United States-Mexico agricultural trade. The Article then highlights major, proposed revisions to this regime under the NAFTA and offers perspectives on the effect of these revisions upon the United States’ agricultural industry sectors. This analysis includes a commodity reference guide, which highlights specific commodity trade sectors and the NAFTA treatment of …

Customs Enforcement And The Nafta., Robert T. Givens, Rayburn Berry

St. Mary's Law Journal

Abstract Forthcoming.

Justice Thurgood Marshall In Memoriam., Gabrielle Kirk Mcdonald

St. Mary's Law Journal

Abstract Forthcoming.

Judging In The Quiet Of The Storm., Shirley S. Abrahamson

St. Mary's Law Journal

Justice Benjamin Cardozo evaluates the elements he believes motivate judges in deciding cases in The Nature of the Judicial Process. Judge Cardozo focuses primarily on common-law courts deciding common-law cases. Although state-court dockets cover a wider variety of topics today and the legal landscape has changed, The Nature of the Judicial Process remains influential. The basis of Judge Cardozo’s approach is to first extract principles from past cases and apply them to new fact situations. Cardozo refers to this process as the method of philosophy. As precedent cannot readily solve all new disputes, this process may require judges select from …

Revisiting Standards Of Review In Civil Appeals - Foreword Foreword., Nathan L. Hecht

St. Mary's Law Journal

Abstract Forthcoming.

Judges On Judging: A Bibliography., Shirley S. Abrahamson, Susan M. Fieber, Gabrielle Lessard

St. Mary's Law Journal

Abstract Forthcoming.

Revisiting Standards Of Review In Civil Appeals., W. Wendell Hall

St. Mary's Law Journal

Applying and defining the accurate standard of review determines how likely an appeal will be successful. While the proper standard of review may be easy to identify, applying the standard of review to a case is often problematic. The standards define the interactions between trial and appellate courts by distributing the power of review throughout the judicial branch. The standards of review also limit a court’s authority to determine an error by a trial court, and whether the error warrants reversal. The standard sets the requirements of substantive law and provides a means for appellate judges to weigh arguments. This …

Congressional Reform: Can Term Limitations Close The Door On Political Careerism., Julia C. Wommack

St. Mary's Law Journal

Addressing Congressional woes requires reform. Entrenched incumbency is a detriment to the legislative system. Although the enactment of initiatives restricting Congressional terms limits signal voters agree, better alternatives exist. The only prerequisites found in the Constitution for serving in Congress are age, residency, and citizenship. While the twenty-second amendment proscribes the presidential office limit maximum as two terms, no such limitations exist for a congressman or congresswoman. Sitting incumbents have substantial advantages over their challengers. Incumbents success ratio exceeds 80% in Senate races and is approximately 90% for elections in the House of Representatives. Congressional term limitations attempt to eliminate …

Severability, John C. Nagle

Journal Articles

When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute.

This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …

Natural Law Ambiguities, Robin West

Georgetown Law Faculty Publications and Other Works

I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a …

"A(Nother) Critique Of Pure Reason": Toward Civic Virtue In Legal Education, Angela P. Harris, Marjorie Shultz

Angela P Harris

No abstract provided.

Battered But Not Beaten: Women Who Kill In Self Defence, Ian D. Leader-Elliott Professor

Ian D Leader-Elliott Professor

This essay commences with a critical evaluation of the battered woman syndrome. It continues with an illustrative biographical fragment, before discussing the polemics of excuse and justification in American criminal law. The concluding section provides an account of the law of self defence and provocation in their application to defensive homicides against attack by an intimate aggressor. The argument of the essay is that Australian common law is capable of discriminating and compassionate justice, in cases of self defence against intimate aggressors and provocation by intimate aggressors. Recourse to the dubious theory that the victims of domestic violence are characterised …

"A(Nother) Critique Of Pure Reason": Toward Civic Virtue In Legal Education, Angela P. Harris, Marjorie Shultz

Marjorie M. Shultz

No abstract provided.

Conflict Of Laws In Canada: The Case For An Interpretive Approach, Shelley M. Kierstead

Shelley M. Kierstead