Law Commons^™

Thoughts About Pursuing Diversity In Legal Education For Pedagogical Rather Than Political Or Compensatory Reasons, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Constructing The Substantive Constitution, James E. Fleming

Faculty Scholarship

I. Introduction A. The Flights from Substance in Constitutional Theory A specter is haunting constitutional theory-the specter of Lochner v. New York.' In the Lochner era, the Supreme Court gave heightened judicial protection to substantive economic liberties through the Due Process Clauses.2 In 1937, during the constitutional revolution wrought by the New Deal, West Coast Hotel v. Parrish3 officially repudiated the Lochner era, marking the first death of substantive due process.4 Nevertheless, the ghost of Lochner has perturbed constitutional theory ever since, manifesting itself in charges that judges are "Lochnering" by imposing their own substantive fundamental values in the guise …

Parading Ourselves: Freedom Of Speech At The Feast Of St. Patrick, Larry Yackle

Faculty Scholarship

Three things are true. First, American society is now absorbed in yet another great civil rights movement, this one on behalf of gay, lesbian, and ambisexual citizens, which will lead ineluctably to the elimination of legal burdens on the basis of sexual orientation.' Change will come slowly, with much backing and filling, and at an awful price measured in human pain. Intolerance for the homosexualities that exist among us, and the homosexual behavior in which many of us engage, will persist in quarters where the law cannot reach.2 Yet private homophobia, deprived of legal sanction, will ultimately be discredited and …

Partner Notification And The Threat Of Domestic Violence Against Women With Hiv Infection, Karen H. Rothenberg, Richard L. North

Faculty Scholarship

No abstract provided.

Real Property: 1993 Survey Of Florida Law, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival

Faculty Scholarship

Justice Marshall served on the Court from 1967 until 1991. During that period, Congress passed all of the major federal environmental statutes and environmental regulation mushroomed. As a result, the Marshall papers reveal how the Court reached decisions that have shaped modern environmental law. The author, a former law clerk to former Justice Byron White and an associate professor of law at the University of Maryland, begins by describing the history of the Court's treatment of environmental disputes. He then discusses the steps the Justices take in deciding whether to accept cases for review; in reaching decisions on the merits …

Texas Bucks The Trend - No Cause Of Action For Lost Chance Of Survival In The Medical Malpractice Context: Kramer V. Lewisville Memorial Hospital, Wayne Barnes

Faculty Scholarship

Jennie Kramer visited her gynecologist in August 1985 complaining of unusual discharges and intermittent bleeding. At that time, her doctor informed her that she tested negative for cancer. Her irregular bleeding continued, but on two subsequent visits to another doctor in November and December, Ms. Kramer was again informed that she did not have cancer. During February of 1986, after continued bleeding, Ms. Kramer detected a hard spot in her vagina. She returned to the second doctor a third time, at which time she was diagnosed with cancer. In spite of subsequent exploratory surgery and chemotherapy, Ms. Kramer died on …

Doctrine Or Dictum: The Ker-Frisbie Doctrine And Official Abductions Which Breach International Law, Aaron Schwabach, S. A. Patchett

Faculty Scholarship

No abstract provided.

Just The Facts, Ma'am: Lying And The Omission Of Exculpatory Evidence In Police Reports,, Stanley Z. Fisher

Faculty Scholarship

George Jones's ordeal was the product of, and in turn sheds light upon, police practices of investigating crimes and writing reports. Written police reports of criminal incidents and arrests give details such as the time, place, and nature of criminal conduct; the names and addresses of victims and witnesses; physical characteristics of the perpetrator(s) or arrestee(s); weapons used; property taken, recovered, or seized from the arrestee; and injuries to persons and property. Through their reports, the police "have fundamental control over the construction of [the] 'facts' for a case, and all other actors (the prosecutor, the judge, the defense lawyer) …

Evaluating Ethics Committees: A View From The Outside, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Age-Based Incentives, Coercion, And The Prospective Waiver Of Adea Rights: The Failure Of The Older Workers' Benefit Protection Act, Michael C. Harper

Faculty Scholarship

The theses of this Article shall be developed in the following manner. Part I shall explain how conditional age-based exit incentive windows can be used by employers to achieve indirectly what the ADEA clearly prohibits when accomplished directly: the removal from employment of a group of employees chosen, at least in part, on the basis of their age. This Part further explains how this removal is accomplished by effectively inducing employees to waive prospectively their future ADEA protection. Part II analyzes the treatment of age-based conditional exit incentives by the courts before the passage of the OWBPA, stressing that the …

A Model Of Products Liability Reform, Anita Bernstein

Faculty Scholarship

No abstract provided.

Striking The Balance: The Evolving Nature Of Suretyship Defense, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Preempting Justice Through Binding Arbitration Of Future Disputes: Mere Adhesion Contracts Or A Trap For The Unwary Consumer, Michael Z. Green

Faculty Scholarship

When individual consumers with little or no bargaining power have not consented to particular contractual terms, the use of the courts and judicial interpretations may be the only way to promote justice and allow consumers to protect themselves. Unfortunately, the trend, as established in recent United States Supreme Court decisions, is to apply the deferential standards of enforcement from commercial transactions to situations involving adhesion contracts between an individual consumer and a business entity where equal bargaining power is clearly lacking.

Perhaps the most pervasive example of this trend has been the Supreme Court's zealous enforcement of arbitration clauses under …

A Practical Guide To Recent Developments In Federal Habeas Corpus For Practicing Attorneys, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Compensation For Takings: How Much Is Just, Glynn S. Lunney Jr

Faculty Scholarship

Once a court has determined that the government has "go[ne] too far" in changing or restricting existing property rights, and that a "taking" has, therefore, occurred, the Fifth Amendment requires that the government provide "just compensation" to the individual whose property it has taken. In defining the measure of compensation mandated by the Constitution, the Supreme Court has consistently explained that an individual is entitled to "a full and exact equivalent" for the taken property, and to be "put in as good [a] position pecuniarily as he would have been if his property had not been taken."

Yet, behind the …

The Social Origins Of Property, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …

Cipollone V. Liggitt Group, Inc., Federal Preemption And The Preservation Of State Common Law Claims (Product Liability), David J. Stout

Faculty Scholarship

In virtually every case involving a defective product you can anticipate the manufacturer or supplier seeking refuge behind the tired refrain "the Government let me do it." At its most basic the doctrine of preemption limits the operation of state law in areas where Congress has intended that federal law be exclusive or controlling.

It is to be hoped that the wave of federal preemption has crested and that the federal courts will, under the specific guidance of Cipollone, be less inclined to look beyond the expressed purpose of Congress to find state common law tort claims preempted.

Financial Exploitation Of The Elderly, Diane E. Hoffmann, Roger Wolf

Faculty Scholarship

No abstract provided.

Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon

Faculty Scholarship

Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.

The Legal Infrastructure Of Markets: The Role Of Contract And Property Law Essay, Tamar Frankel

Faculty Scholarship

Markets are social institutions that facilitate exchange transactions. Therefore, they require a regime of freedom to exchange-a contract regime. Markets can be made more efficient by reducing the transaction and information costs for market actors. Such a reduction can be effected by standardizing the products exchanged, the terms of the transactions, and the nature of the rights transferred. Information costs can be reduced by publicizing the transactions' and by using the services of intermediaries

The Government Contractor Defense, David J. Stout

Faculty Scholarship

Litigation involving defective products has increasingly become a pre-trial battle to overcome a series of technical defenses that have become a stock part of the manufacturer's defense.

Defendants invariably raise the government contractor defense where the defective product resulted from some governmental involvement in the manufacturing process, no matter how peripheral or superfluous was the government's involvement in that process.

The defense by its nature only applies to design defect cases. A defect in the manufacturing process is not protected by the defense.

Defining Finality And Appealability By Court Rule: A Comment On Martineau’S Right Problem, Wrong Solution, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Implications Of The Stakeholder Model, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Drafting Commercial Law For The New Millennium: Will The Current Process Suffice?, Neil B. Cohen, Barry Zaretsky

Faculty Scholarship

No abstract provided.

Implications Of The Stakeholder Model, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Faculty Scholarship

The first part of this Comment will present the historical and theological views towards suicide. This background material will be helpful in understanding present-day society's response to the assisted suicide debate by tracing many of the condemnations back through common law development. The second portion of this Comment will focus on the current status of the assisted suicide debate. Although most courts have passed on the issue" and most legislatures do not have laws addressing assisted suicide, there is a great deal of activity shaping the legal future of this topic. This section emphasizes the importance of key nonlegal players …

Choice Of Language In Bilateral Treaties: Fifty Years Of Changing State Practice, John King Gamble, Charlotte Ku

Faculty Scholarship

The language in which treaties are written affects how widely and deeply treaty obligations are understood and, hence, followed.

Of course, many problems arise when the treaty does not have the same meaning in different languages.

The focus of this article is a different aspect of language in treaties--the choice of language or languages as official text or texts of bilateral treaties. Some research has addressed the broader issue of multiple use of languages in international organizations and multilateral treaties, but bilateral treaties have received scant attention. This inattention likely stems from the difficulty of examining the treaty practice of …

When Courts Refuse To Frame The Law And Others Frame It To Their Will, Susan P. Koniak

Faculty Scholarship

In the aftermath of Kaye, Scholer, Fierman, Hays & Handler's settlement with the government,¹ two versions of the story have emerged. The most popular version features the government actors as villains-villains with new and lethal weapons at their disposal, willing to enforce law that has leapt full grown from their heads like Zeus' child, law of which the rest of the civilized world was unaware. The counterstory, less often told but not without adherents, casts the lawyers of Kaye, Scholer as the villains: unscrupulous and greedy lawyers ready to break any rule, defile any process, twist any truth on …