Law Commons^™

Symposium On Religious Law: Roman Catholic, Islamic, And Jewish Treatment Of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, And Martial Fraud, Azizah Y. Al-Hibri

Law Faculty Publications

This symposium offers perspectives from three religious law traditions: Roman Catholicism, Islam, and Judaism. Each of the three legal traditions offers a comprehensive, normative system that translates doctrine into practice and religious values into concrete directives. While the place of theological law differs in the respective religious bodies, each body asserts a binding authority over its confessional members.

The New Simultaneous Death Act: Welcome Changes For Donative Transfers, J. Rodney Johnson

Law Faculty Publications

Professor Johnson compares the 1991 Uniform Simultaneous Death Act with its 1941 predecessor and finds the newer legislation a vast improvement, particularly ind dealing with deaths occurring within short intervals.

Family Planning And Islamic Jurisprudence, Azizah Y. Al-Hibri

Law Faculty Publications

In this speech, the author provides a brief overview of Islamic jurisprudence on the subject matter and does not recommend any particular position with respect to the debate on family planning. The author, however, wishes to emphasize to the reader the importance of correctly analyzing arguments and factors involved in the particular situation under consideration, in light of all relevant communal as well as individual factors. The author also wishes to emphasize the importance of formulating all such analysis free from all forms of compulsion and coercion, whether conscious or subconscious, individual or organized, including that of targeted advertising campaigns. …

The Tribunal In Albania, John Paul Jones

Law Faculty Publications

Professor Jones explains and critiques "The Organization of Justice and the Constitutional Court," the1992 amendments to Albania's provisional constitution that established the nation's post-revolution judicial system.

Unnecessary Immunity: Fetta V. Board Of Medicine, John Paul Jones

Law Faculty Publications

Prof. Jones critiques the holding of the Supreme Court of Virginia in Fetta v. Va. Bd. of Medicine, 421 S.E.2d 410 (Va. 1992).

Rethinking Federal Judicial Selection, Carl W. Tobias

Law Faculty Publications

The inauguration of President Bill Clinton, who will appoint more than three hundred new federal judges, affords an auspicious occasion for rethinking the process of federal judicial selection. The current federal bench, two-thirds of whose members were appointed by Presidents Ronald Reagan and George Bush, reflects increased conservatism and is quite homogeneous in terms of race, gender, and political perspectives. For instance, President Reagan appointed a dramatically smaller, and President Bush named a substantially lower, percentage of African-Americans than did President Jimmy Carter. The Republican chief executives made these appointments although they had much larger, more experienced, pools of female …

The D.C. Circuit As A National Court, Carl W. Tobias

Law Faculty Publications

Every President since Franklin Delano Roosevelt has appointed lawyers from across the country to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") and has been accused of ignoring the members of the D.C. Bar. The tradition of nationwide recruitment for appointment to the D.C. Circuit has served the District and the nation well, yielding some of the court's and America's finest judges.

The practice of seeking nominees nationally to fill vacancies on the D.C. Circuit recently faced a serious challenge. Many members of the D.C. Bar, who have long opposed this practice, developed a …

Civil Justice Reform In The Western District Of Missouri, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Justice Reform Act (CJRA) of 1990 out of growing concern about litigation abuse in federal civil lawsuits, increasing cost and delay in those cases, and declining federal court access. The legislation commands every federal district court to promulgate a civil justice expense and delay reduction plan by December 1993. The statute also creates a demonstration program and designates the Northern District of California, the Northern District of West Virginia, and the Western District of Missouri as courts that are to "experiment with various methods of reducing cost and delay in civil litigation, including alternative dispute resolution. …

The European Rate Mechanism: It Continues To Function, But ...., Daniel T. Murphy

Law Faculty Publications

The recession from which the United States is just emerging, and in which much of the rest of the industrialized world is still mired, differs from many others preceding it. In part this is so here because some of the classic nostrums appear ineffective. For some time, interest rates in the United States have been at their lowest level in decades. Yet the low interest rates do not appear to be producing the usual effect of spurring capital investment and economic growth as rapidly as might be expected.

One reason that they have not produced the usual rate of growth …

Opt-Outs At The Outlaw Inn: A Report From Montana, Carl W. Tobias

Law Faculty Publications

Report of Prof. Tobias' CLE presentation at the Montana State Bar Association's annual meeting, highlighting the 1993 revisions to the Federal Rules of Civil Procedure and the Civil Justice Reform Act.

Keeping The Covenant On The Federal Courts, Carl W. Tobias

Law Faculty Publications

When Governor Clinton was campaigning for the presidency, he contended that the federal court appointments of President Ronald Reagan and President George Bush significantly reduced the diversity that President Jimmy Carter had strongly promoted. Candidate Clinton pledged, if elected President, to rectify that situation. Since the election, Bill Clinton has fulfilled his promise by naming to the judiciary outstanding attorneys who reflect the diverse composition of American society. Now that President Clinton has completed his initial year of service, it is important to analyze the Clinton Administration's record of choosing judges to ascertain precisely how the President has kept his …

Recalibrating The Civil Justice Reform Act, Carl W. Tobias

Law Faculty Publications

In 1990, Congress enacted the Civil Justice Reform Act ("CJRA"), a measure which could substantially change the nature of federal civil litigation. One aspect of the CJRA that provides evidence respecting the progress of civil justice reform is the civil justice expense and delay reduction plans issued in late 1991 by the thirty-four federal district courts which the Judicial Conference of the United States designated as Early Implementation District Courts ("EIDCs").

Congress is currently attempting to assess the reforms included in these plans, which constitute the initial significant step in implementing the CJRA. By some oversight, Congress has not invited …

Civil Justice Reform In The Fourth Circuit, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Justice Reform Act of 1990 (CJRA) because it was increasingly concerned about litigation and discovery abuse in federal civil cases, growing cost and delay in such suits, and decreasing access to federal courts. The statute requires that all ninety-four federal district courts develop civil justice expense and delay reduction plans by December 1993. Thirty-four districts issued plans by December 1991, and the Judicial Conference of the United States recently designated these districts as Early Implementation District Courts (EIDC).

Three of those EIDCs, the Eastern District of Virginia, the Northern District of West Virginia, and the Southern …

Executive Branch Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

The authors of several papers in this Symposium have justifiably criticized the essay that former Vice President Dan Quayle published in Volume 41 of The American University Law Review. Many knowledgeable observers of the civil justice system have leveled equally legitimate criticism at civil justice reform initiatives that the Bush administration instituted. Questionable data, arguable policy, or overheated political rhetoric supported certain aspects of the Vice President's paper, as well as most of the proposals developed by the Competitiveness Council that the Vice President chaired and numerous efforts of the Republican administration in the area of civil justice reform.

One …

Untenable, Unchristian, And Unconstitutional, Carl W. Tobias

Law Faculty Publications

Professor Tobias provides an account of the ultimately successful 1960 efforts to desegregate the Petersburg, Virginia Public Library.

In Defense Of Experimentation With Automatic Disclosure, Carl W. Tobias

Law Faculty Publications

It would be presumptuous of me to criticize either view articulated, and even worse form to choose sides, in the recent dispute over the merits of automatic disclosure that graced the pages of this journal. Federal civil procedure cognoscenti need no introduction to these highly respected participants in, and students of, the federal courts. Former Judge Griffin B. Bell rendered distinguished service on the United States Court of Appeals for the Fifth Circuit before President Jimmy Carter appointed him Attorney General. Senior Judge William W Schwarzer compiled an excellent record of service as a judge of the United States District …

President Clinton's Covenant And The Federal Courts, Carl W. Tobias

Law Faculty Publications

President Bill Clinton has eloquently invoked the concept of a new covenant with the American people. Claiming that the populace elected him with a mandate for change, the President has appointed individuals to high-level positions, particularly in the Cabinet, who have made the new government look like America. In no branch of the federal government are these ideas more apposite than the Third Branch.

The Clinton Administration And Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Governor Bill Clinton was inaugurated as the President of the United States last month. The federal courts are one area of critical significance to the nation in which the Chief Executive can play a major role in important substantive and procedural policymaking. Moreover, President Clinton, as a former law professor and Arkansas Attorney General, may be particularly interested in issues involving the federal courts.

The Clinton Administration will have to address numerous issues that implicate the federal courts throughout its tenure, but especially during the first year in office. Some of these questions, such as the abolition of diversity jurisdiction, …

Products Liability Tort Reform: Why Virginia Should Adopt The Henderson Twerski Proposed Revision Of Section 402a, Restatement (Second) Of Torts, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is fourfold: first, to illustrate that there is currently a newer, more balanced consensus view in American products liability law today; second, to demonstrate that this current, realistically balanced, consensus in American products liability law is persuasively codified in a proposed revision to section 402A, Restatement (Second) of Torts, by Professors James Henderson and Aaron Twerski; third, to compare and contrast current Virginia products liability law with the Henderson- Twerski proposed revision of section 402A; fourth, to propose new legislation in Virginia that would incorporate the Henderson-Twerski proposal, and would realistically reform existing Virginia products …

Poison Gas Proliferation: Paradox, Politics, And Law, John Paul Jones

Law Faculty Publications

After the outbreak of the 1991 Gulf War, Israeli civilians within the range of Iraqi SCUD missiles and allied troops in Operation Desert Storm braced themselves for a chemical weapons attack. Despite experts' assessments that Iraq possessed enough chemical weapons to mount a devastating attack, and Iraqi leader Saddam Hussein's threats to use those weapons,3 the fighting ended without a chemical attack. President Bush's veto and the Iraqis' restraint represent just two of the many paradoxes surrounding the proliferation of the "poor man's atom-bomb." This Article analyzes a series of paradoxes emanating from President Bush's campaign against chemical weapons.

Part …

The Right Of The People To Be Secure, Ronald J. Bacigal

Law Faculty Publications

Part I of this Article defines searches and seizures of property and person, discussing the Supreme Court's initially broad interpretation of the Fourth Amendment and its subsequent narrowing in later decisions. Part II discusses several police "chase cases" leading up to the elimination of accidental and attempted seizures from Fourth Amendment protection in Brower v. County of Inyo and California v. Hodari D. Part Ill analyzes the Brower decision and its effect on accidental seizures, concluding that the analysis set forth therein should be abolished and advocating an alternate test. Part IV confronts the Court's elimination of attempted seizures from …

The Case For A Feminist Torts Casebook, Carl W. Tobias

Law Faculty Publications

Professor Leslie Bender's recent essay, An Overview of Feminist Torts Scholarship, contributes substantially to the construction of feminist perspectives on tort law. She carefully and comprehensively surveys burgeoning feminist scholarship in the field of torts. Professor Bender closely examines feminist histories of substantive tort law, the application of feminist theory to tort doctrine, to tort law concepts, and to the teaching of torts, tort issues that are important to women's lives, social science research involving feminism and torts, book reviews that are relevant to feminist tort law, and overviews of material that implicate feminist viewpoints of torts. After Professor Bender …

More On Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court has been experimenting with practically all of the procedures that it included in the civil justice expense and delay reduction plan that the district formally promulgated in April 1992 under the Civil Justice Reform Act (CJRA) of 1990. The Article III judges and the magistrate judges and numerous Montana federal court practitioners have now accumulated considerable experience with the procedures instituted, while efforts are presently being undertaken to evaluate most of the procedures. Numerous new development.s regarding national implementation of federal civil justice reform have also been occurring. Important developments that implicate federal civil justice …

Updating Federal Civil Justice Reform In Montana, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court has now implemented most aspects of the civil justice expense and delay reduction plan that it formally adopted in April of 1992. Moreover, all of the judicial officers and many Montana attorneys who practice in federal court have had experience with those procedures which the plan imposes. Furthermore, there have been certain new developments relating to the implementation of federal civil justice reform nationally. This article provides an update of significant developments involving federal civil justice reform at the national level and in the Montana District as the court and practitioners enter their second year …

Finding The New Federal Civil Procedures, Carl W. Tobias

Law Faculty Publications

This issue includes a notice informing subscribers that Congress took no action on the package of amendments to the Federal Rules of Civil Procedure which the Supreme Court transmitted on April 22, 1993 and that those amendments became effective on December 1, 1993. Readers might assume that the amendments which are reprinted in Volume 146 of Federal Rules Decisions now have nationwide applicability. This assumption is correct for most of the amendments, such as the significant revisions in Rule 4 governing service and in Rule 11 covering sanctions.

The assumption is not true, however, for some of the amendments, several …

The Gender Gap On The Montana State Bench, Carl W. Tobias

Law Faculty Publications

Governor Racicot should expeditiously and forcefully act to remedy the gender gap on the state courts for many reasons. First, there is a significant, highly qualified, pool of female attorneys in Montana who could render excellent judicial service. Numerous women have participated in the types of rigorous legal practices which would prepare them well for the bench. These female lawyers are intelligent, industrious, and independent, while they have exhibited the kind of impeccable integrity and appropriately measured judicial temperament to be fine judges. Some of the attorneys have engaged in challenging public law practices, others have been involved in rigorous …

Silver Linings In Federal Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Many observers, including most of the participants in the civil litigation symposium, have levelled considerable criticism at the Civil Justice Reform Act of 1990 ("CJRA" or "Act") and its implementation. This criticism--which encompasses numerous phenomena, as abstract as constitutional theory and as pragmatic as numerical limitations on interrogatories--emanates from several quarters and ranges across the political spectrum.

Notwithstanding the numerous criticisms that observers have lodged at the statute and its effectuation, a number of which have considerable validity, the federal reform initiative has afforded many advantages. Unfortunately, these benefits have received comparatively little recognition. Because the reform's salutary aspects could …

Closing The Gender Gap On The Federal Courts, Carl W. Tobias

Law Faculty Publications

When the Bush Administration placed comparatively few women on the bench during its initial half-term, I criticized President Bush's mediocre record. I was pleasantly surprised to learn that the Bush Administration ultimately appointed an unprecedented percentage of women to the federal courts; 36 of the 192 judges President Bush appointed were women (18.7%).

Notwithstanding the Bush Administration's efforts, the percentage of female judges remains significantly lower than the representation of women in the legal profession. Moreover, President Bush left 100 open judgeships. These vacancies mean that President Bill Clinton can greatly increase the numbers and percentages of female judges and …