Law Commons^™

The North American Free Trade Agreement (Nafta): Good For Jobs, For The Environment, And For America, Thomas J. Schoenbaum

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Although NAFTA's impact is primarily economic, it will also have a profound political impact, especially on relations between Mexico and the United States. In coming to the decision to seek a free trade agreement with the United States, Mexico has already made important political decisions: to jettison its defensive nationalism and fear of United States domination; to reform and liberalize its economic system; and to pave the way for democratizing its political institutions. The United States, in turn, has long sought a solid foundation to overcome its often prickly relationship with its southern neighbor and other Latin American nations. Eliminating …

The Proper Role Of After-Acquired Evidence In Employment Discrimination Litigation, Rebecca White, Robert D. Brussack

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A new defense to employment discrimination claims has gained acceptance in the lower courts. Employers who allegedly have discriminated against their employees because of race, sex or age are winning judgments on the basis of after-acquired evidence of employee misconduct. The evidence is “after-acquired” in the sense that the misconduct was unknown to the employer at the time the alleged discrimination occurred but was acquired later, often through the use of discovery devices in the employee's discrimination action. Lower courts have accepted the proposition that if the employer would have discharged the plaintiff on the basis of the after-acquired evidence, …

Copyright And "The Exclusive Right" Of Authors, L. Ray Patterson

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The purpose of this essay is to define and explore the meaning of "the exclusive Right" in the Intellectual Property Clause of the United States Constitution as related to the promotion of learning, the public domain, and authors. Without a clear understanding of this key term, one is likely to be unaware that lower federal courts are continually making rulings contrary to both the Copyright Clause and the Copyright Act. The classic example is the judicially created sweat-of-the-brow copyright, which in 1991 -- after seventy-five years of precedent -- the Supreme Court decreed to be unconstitutional. Other bad precedents, such …

Resolving Priority Disputes In Intellectual Property Collateral, Paul J. Heald

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Although a goodly amount of recent commentary provides guidance to practitioners on the pitfalls of perfecting a security interest in intellectual property collateral, and another body of work has undertaken the laudable task of proposing reform in the area, no comprehensive attempt has yet been made to help judges resolve the complex priority disputes that arise under existing law. In light of the increased use of intellectual property as collateral and the concomitant rise in litigation, guidance on the resolution of priority disputes in intellectual property collateral is sorely needed. For example, recent cases find Article 9 of the Uniform …

The Georgia Jury And Negligence: The View From The Trenches, R. Perry Sentell Jr.

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This is the third part of a project devoted to analyzing the Georgia negligence jury. The project employed as its original point of departure the extensive Chicago Jury Study of the 1960s, directed by Chicago Law Professor Harry Kalven, Jr. That Study's immortality derives principally from its famous first premise: Meaningful evaluation of the jury system must originate from within the system itself. That premise propelled Professor Kalven through a massive national survey of trial judges. The judges' responses, under Kalven's insightful analysis, yielded an unprecedented profile of the American jury. In foundational fashion, those responses indelibly etched into legal …

State Taxation Of Corporate Income From Intangibles: Allied-Signal And Beyond, Walter Hellerstein

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If the field of state taxation has become somewhat of an academic backwater, it is not for want of issues warranting sustained scholarly attention. The Supreme Court alone has provided ample grist for the academic mill by handing down an extraordinary number of significant decisions delineating the federal constitutional restraints on state tax power. Among the state tax questions considered by the Court in recent years, none has figured so prominently and persistently in its deliberations as the states' power to tax the income of multijurisdictional corporations. In Allied-Signal, Inc. v. Director, Division of Taxation, the Court revisited the most …

Justice Blackmun, Federalism, And Separation Of Powers, Dan T. Coenen

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On June 8, 1970, Harry A. Blackmun took his seat on the Supreme Court bench. Few then foresaw that, in the ensuing twenty-three terms of the Court, Justice Blackmun would make contributions to American law that rank no less than monumental. Justice Blackmun has become best known for his landmark opinion in Roe v. Wade and his increasingly pointed defense of libertarian and egalitarian values. During his long tenure on the Court, however, Justice Blackmun also quietly has shaped the law of constitutional federalism and separation of powers.

This reality first came to my attention in 1987, when I received …

Mindlessness And Nondurable Precautions, Paul J. Heald

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Assuming initially that negligence law does not make the distinction between durable and nondurable precautions, this Article will first explain in economic terms why the failure of courts to take into account the cost of remembering may nonetheless be efficient. A substantial body of research on the phenomenon of mindless decisionmaking ("scripting") suggests that most remembering is automatic--a nonconscious response to frequently encountered patterns of stimuli. Script theory suggests that once the behavioral script is in place, an automatic response operates at a very low cost. If so, the failure of courts to account for the cost of remembering would …

Money Laundering: Business Beware, Larry D. Thompson

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This Article examines the constitutionality of the Anti-Money Laundering Statutes. Specifically, the Article stresses that the Anti-Money Laundering Statutes, like RICO, are unconstitutionally vague and overbroad when applied to routine business transactions. Accordingly, Part II summarizes the void for vagueness and overbreadth doctrines. Part III sets forth the elements of the Anti-Money Laundering Statutes and then examines these elements under both doctrines. Part IV discusses how the lack of guidelines and, in some cases, the lack of prosecutorial discretion exacerbates the problems of vagueness and overbreadth. The Article concludes with the suggestion that guidelines similar to those adopted for RICO …

Getting To Know: Honoring Women In Law And In Fact, Lynne Henderson

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No abstract provided.

The Appropriate Role Of Plaintiff Misuse In Products Liability Causes Of Action, Peter Zablotsky

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No abstract provided.

Are Spread Out Cities Really Safer? (Or, Is Atlanta Safer Than New York?), Michael Lewyn

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No abstract provided.

How To Limit Gerrymandering, Michael Lewyn

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No abstract provided.

The Fair Housing Act, Zoning, And Affordable Housing, Patricia E. Salkin, John M. Armentano

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No abstract provided.

The Eleventh Commandment: Thou Shalt Not Be Compelled To Render The Ineffective Assistance Of Counsel, Richard Klein

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No abstract provided.

Profit, Progress And Moral Imperatives, Deborah W. Post

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No abstract provided.

Race, Riots And The Rule Of Law, Deborah Waire Post

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No abstract provided.

Voting Behavior On The Texas Court Of Criminal Appeals, 1991-92, Keith A. Rowley, Michael D. Weiss

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Between early 1991, when Judge Fortunato Benavides was appointed to replace Judge Marvin O. Teague, and July 1, 1992, the Texas Court of Criminal Appeals decided 251 cases where the ultimate question at stake was whether or not an accused individual would receive punishment for his or her alleged wrongdoing. While the sitting judges unanimously decided roughly one-half of these cases, 133 cases resulted in one or more dissenting votes. Furthermore, a margin of two votes or less decided thirty-five cases.

The purpose of this Article is to analyze and, if possible, explain the voting behavior of the members of …

Reinventing Reality: The Impermissible Intrusion Of After-Acquired Evidence In Title Vii Litigation, Ann C. Mcginley

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This Article analyzes the use of after-acquired evidence to defeat a discrimination victim's claim against her employer. The use of the Mount Healthy and Price Waterhouse mixed motives analysis in after-acquired evidence cases is misplaced because it is impossible for the permissible motive—resume fraud—to have been a factor in the adverse employment decision. Furthermore, after the enactment of the Civil Rights Act of 1991, it would be an improper judicial intrusion upon the power of the legislature for courts to apply mixed motives analysis to these cases. Besides the constitutional limitation on the judiciary's power created by the Civil Rights …

Fairness And Finality: Third-Party Challenges To Employment Discrimination Consent Decrees After The 1991 Civil Rights Act, Marjorie A. Silver

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In this Article, Professor Silver examines Section 108 of the Civil Rights Act of 1991, which limits challenges to employment practices taken pursuant to employment discrimination consent decreea The Article traces the development of the impermissible collateral attack doctrine, that doctrine's demise in Martin v. Wilks, and Congress' response to Martin as embodied in Section 108. Professor Silver also suggests ways in which Section 108 should be administered to comply with the Due Process Clause and argues for specific additional federal legislation to protect non-litigants or potential third-party challengers as well as to foster the utility and finality of legitimate …

Regional Planning In New York State: A State Rich In National Models, Yet Weak In Overall Statewide Planning Coordination, Patricia E. Salkin

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No abstract provided.

Homecoming: The Ritual Of Writing History, Deborah Waire Post

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No abstract provided.

Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer

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No abstract provided.

Credulous Courts And The Tortured Trilogy: The Improper Use Of Summary Judgment In Title Vii And Adea Cases, Ann C. Mcginley

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Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but …

Machiavelli And The Politics Of Welfare, National Health, And Old Age: A Comparative Perspective Of The Policies Of The United States And Canada, Camilla Watson

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This Article maintains that in order to fully comprehend the politics of welfare, retirement security, and national health coverage, it is necessary to examine Machiavellian principles in relation to the variables of economic development and inter-party competition. If the principles of Machiavelli are applied in a slightly different and more constructive manner, they may facilitate reform of the American welfare, retirement, and national health systems. Now that the political balance in the United States has shifted from the conservative to the liberal, the time is ripe to consider reforming the entire Social Security system and instituting a comprehensive national health …

Law, Art, And The Killing Jar, Louise Harmon

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No abstract provided.

Introduction (Symposium On Municipal Liability), Patricia E. Salkin

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No abstract provided.

Seventeenth-Century Jurists, Roman Law, And The Law Of Slavery, Alan Watson

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Issues of slavery and slave law were of considerable theoretical interest to continental European jurists in the seventeenth century. They lived in a different world from American colonists of European descent because they had no direct experience of slave holding and no immediate financial involvement. Their interest stemmed from the fact that their education was in Roman law; and not only was Roman law the most revered system, but slaves were prominent in it. For the jurists' attitudes we must remember that, at least in theory, there were no slaves in territories such as the Dutch Republic, Germany, or France. …

Afterthoughts, Milner S. Ball

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Professor Richard Fallon delivered a thoughtful Sibley Lection which then served as the stimulating subject for an agreeable afternoon Symposium. The papers collected here offer some evidence of the richness of the conversation Fallon opened. I aim to extend that conversation, and so pay tribute both to the Symposium and its honoree, by submitting some afterthoughts. Fallon's paper, with its breadth and subtlety, resists reduction; however, if I do violence and force it into three sentences in an attempt at understanding, the result runs this way: Interests underlie both individual rights and government powers. These interests are conceptually related. It …

Rights As Trumps, Dan T. Coenen

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In this essay, I question Professor Fallon's strong rejection of the notion that "rights are trumps" by making four points. First, rights are trumps in the single, but important, sense that they preclude the exercise of powers granted to government by the constitutional text. Second, rights sometimes operate as trumps on governmental powers in the very purse sense that they cut off all consideration of governmental interests. Third, even when the Court considers government interests in dealing with rights, it often does so on such a restricted basis that the description of rights as "trumps" remains accurate. Finally, even accepting …