Law Commons^™

Family Values And The Bankruptcy Code: A Proposal To Eliminate Bankruptcy Benefits Awarded On The Basis Of Marital Status, A. Mechele Dickerson

Fordham Law Review

No abstract provided.

Workfare Wages Under The Fair Labor Standards Act, Walter M. Luers

Fordham Law Review

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Annual Survey Of Virginia Law: Insurance Law, Terrence L. Graves

University of Richmond Law Review

This article will summarize and discuss case decisions and statutory changes in the field of insurance law that have taken place over the last two years. As in years past, most of the cases involve automobile coverage, particularly uninsured and underinsured motorist coverage. Other areas covered by this article include the following: liability insurance, automobile medical payments coverage, insurance regulation, fire insurance, and homeowners insurance.

Foreword, Heather N. Stevenson

University of Richmond Law Review

The University of Richmond Law Review is pleased to present the sixth annual Allen ChairSymposium issue. Through the generous support of the friends and family of George E. Allen, the annual symposium series provides a forum for discussion of legal issues of national and international significance. This issue of the Law Review is the literary complement to the symposium presentations.

The Declaration Of Independence In Constitutional Interpretation: A Selective History And Analysis, Charles H. Cosgrove

University of Richmond Law Review

In 1845, antislavery constitutionalist Lysander Spooner argued that the Declaration of Independence was originally a legal constitution with a direct bearing on how one ought to interpret the status of slavery under the Constitution of 1787. In 1889, the congressional act establishing the states of North Dakota, South Dakota, Montana, and Washington required that their state constitutions "not be repugnant to the Constitution of the United States and the Declaration of Independence," as if the two documents were of a piece. In 1995, attorney Christopher Darden argued to the jury in the O.J. Simpson criminal trial that slain victims Nicole …

The Collapse And Fall Of Floating Buffer Zones: The Court Clarifies Analysis For Reviewing Speech-Restrictive Injunctions In Schenk V. Pro-Choice Network, Amy E. Miller

University of Richmond Law Review

The freedom of speech, although a predominant First Amendment principle, does not create an absolute right and remains subject to limitations for appropriate reasons, such as when the exercise of free speech encroaches upon the rights of others. Particularly sensitive situations arise when courts impose restrictions upon anti-abortion protestors in an attempt to protect the rights of patients and providers at abortion clinics. Indeed, despite a woman's long established right to obtain an abortion, emotionally charged demonstrations and recurrent anti-choice violence persist outside abortion clinics around the nation. Given that such practices induce stress and other health risks to women …

Mlb V. Slj: "Equal Justice" For Indigent Parents, Jason T. Jacoby

University of Richmond Law Review

The United States Supreme Court recently decided that a state may not, consistent with the Due Process and Equal Protection clauses of the Fourteenth Amendment, condition appeals from trial court decrees terminating parental rights on the affected parent's ability to pay record preparation fees. In M.L.B. v. S.L.J., the Supreme Court found that, just as a state may not block an indigent petty offender's access to an appeal afforded others, Mississippi may not deny M.L.B., because of her poverty, appellate review of the sufficiency of the evidence on which the trial court found her unfit to remain a parent.

Second Circuit: Study Of Gender, Race, And Ethnicity, George Lange Iii

University of Richmond Law Review

In 1993, at the request of then Chief Judge Jon O. Newman, the Judicial Council of the Second Circuit created a Task Force on Gender, Racial, and Ethnic Fairness in the Courts. The Task Force, which was comprised of six judicial officers and a citizen participant from each of the Circuit's three states, was asked to study issues of gender, race, and ethnicity in the courts of the Second Circuit, and to report back to the Judicial Council on its findings and recommendations.

Will Inquiry Produce Action? Studying The Effects Of Gender In The Federal Courts, Lynn Hecht Schafran

University of Richmond Law Review

When the Ninth Circuit Gender Bias Task Force released its report at the Circuit's 1992 Judicial Conference, Justice Sandra Day O'Connor offered this perspective:

A couple of years ago, I gave a speech in which I discussed the existence of a glass ceiling for women. The next day, headlines and newspaper articles trumpeted my statements as if I had made a surprising new discovery. But it is now 1992, and I don't think most of us were surprised to learn that the [Ninth Circuit] Task Force found the exis- tence of gender bias in a federal circuit. After all, over …

Eighth Circuit: Gender Fairness Task Force, Lyle E. Strom

University of Richmond Law Review

In July of 1993, the Judicial Council of the Eighth Circuit adopted a resolution for the creation of a task force to study and report on the impact or effect of gender in the administration of justice in the Eighth Circuit. Chief Judge Richard Arnold appointed United States District Judge Diana Murphy of Minnesota to establish the Task Force. A task force of thirty members, consisting of circuit, district, magistrate and bankruptcy judges, employees of the courts, representatives from the offices of the United States Attorneys and Federal Public Defenders, attorneys who practice in federal court, and professors of law, …

Fifth Circuit: Study Of Gender Bias, Gregory A. Nussel

University of Richmond Law Review

In October 1993, in response to a recommendation in the

Report of the National Commission on Judicial Discipline and Removal, Chief Judge Henry A. Politz appointed a Special Committee of the Fifth Circuit Judicial Council to consider and recommend whether a study of gender bias in the Fifth Circuit should be made. The Special Committee, composed of two circuit judges, two district judges, and one magistrate judge, reported its findings to the Judicial Council during a biannual meeting in June 1994.

D.C. Circuit: Study Of Gender, Race, And Ethnic Bias, John Garrett Penn, Matthew J. Devries

University of Richmond Law Review

The District of Columbia Circuit became the first federal circuit to establish a Task Force on race and gender bias. In 1992, the Task Force, which was comprised of judges from the D.C. Circuit, created two committees-the Special Committee on Gender and the Special Committee on Race and Ethnicity-to assist the Task Force in its research. The committees were comprised of academics, social science advisors of national recognition, and leading attorneys.

Austin Owen Lecture: Difficulties, Dangers & Challenges Facing The Judiciary Today, Robert E. Payne

University of Richmond Law Review

Judge Payne presented this address at The Sixth Annual Austin Owen Lecture on November 18, 1997. The Honorable Austin E. Owen attended Richmond College from 1946-47 and received his law degree from The T.C. Williams School of Law in 1950. During his distinguished career, Judge Owen served as an Assistant U.S. Attorney for the Eastern District of Virginia; a partner in Owen, Gray, Rhodes, Betz, Smith and Dickerson; and was appointed Judge of the Second Judicial Circuit of Virginia where he served until his retirement in 1990. The Law School community grieved the loss of this distinguished alumnus upon his …

The Erotic Of Torts, Carol Sanger

Faculty Scholarship

"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist ... that ... do[es] not respect the line between the intellectual and the sexual" (p. 12). Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means – and what its implications are for …

The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis

Faculty Scholarship

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …

A Bill Of Rights For The United Kingdom: From London To Strasbourg By The Northwest Passage?, Stephen Sedley

Osgoode Hall Law Journal

In anticipation of the United Kingdom's patriation of the European Convention on Human Rights, the author explores the possible impact that a Bill of Rights will have on the U.K. system of justice from a European and U.K. perspective. The author argues that, from a European perspective, the U.K. has an established history of yielding to supra-national law given its membership in the European Union. However, from a U.K. perspective, this will present new challenges, as the constitutionality of domestic legislation is subject to increased judicial scrutiny in ensuring conformance with European Convention obligations. The author argues that the pressures …

R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien

Osgoode Hall Law Journal

The Supreme Court of Canada, in R. v. Oakes, identified two standards of justification in applying section 1. The first standard was normative. The second was methodological, called the Oakes test. The Court, until recently, applied the Oakes test mechanically and avoided the normative standard. More recently, in Egan v. Canada and RJR-MacDonald Inc. v. Canada (A.G.), it resorted to a normative analysis that is indeterminate and unpredictable. This article challenges both the mechanical application of the Oakes test and the Court's new normative approach. It proposes, and illustrates, a preferable alternative that is both determinate and predictable. It is …

Retribution Revisited: A Reconsideration Of Feminist Criminal Law Reform Strategies, Dianne L. Martin

Osgoode Hall Law Journal

Were the last 30 years of feminist law reform activity around criminal justice misdirected? Or, if not misdirected, have the efforts been appropriated and manipulated by the New Right? This commentary reflects on this history, and on the failures of the retributive justice project generally, and argues for a reexamination of both. The discussion focuses on the tactics of the New Right and on the retributive goals of some victims' rights organizations as a means of highlighting the unintended consequences of key feminist initiatives around violence against women. Finally, the commentary identifies alternatives to retribution and a need for careful …

The Process Of Terry-Lawmaking, Daniel C. Richman

Faculty Scholarship

The organizers of this Conference obviously gave a lot of thought to its structure. We started off with a session that showed the Supreme Court at its best, working under the gentle leadership of Chief Justice Warren, and guided by the sage counsel of Justice Brennan, to balance the demands of the Fourth Amendment with the exigencies of street encounters. Now we come to a session in which the Supreme Court comes off well, not merely in one, but in both papers. For Steve Saltzburg, Terry itself may not have been perfect, but, over time, the Court has made it …

The Timor Gap: Who Decides Who Is In Control, Brandi J. Pummell

Denver Journal of International Law & Policy

No abstract provided.

Review Of 'Artificial Legal Intelligence', Stephen M. Mcjohn

Suffolk University Law School Faculty Works

Artificial Legal Intelligence, by Pamela Gray, presents a thought-provoking approach to both computational models of legal reasoning and the use of evolutionary thinking about the law. Drawing on a prodigious amount of research, the book looks beyond the rather technical approach common in the field and attempts to place artificial legal intelligence within the broad structure of legal history. This paper first summarizes the book's vision of a computerized artificial legal intelligence, a vision of developments in both technology and legal history. The paper discusses how this fits with trends in both artificial intelligence and legal theory. The paper further …

Labor Law Obstacles To The Collective Negotiation And Implementation Of Employee Stock Ownership Plans: A Response To Henry Hansmann And Other "Survivalists", Jeffrey M. Hirsch

Faculty Publications

No abstract provided.

Victims' Rights And The Constitution: Moving From Guaranteeing Participatory Rights To Benefiting The Prosecution, Robert P. Mosteller

Faculty Publications

No abstract provided.

Building An International Criminal Court For The 21st Century, Bryan F. Macpherson

Connecticut Journal of International Law

This article proposes significant, yet realistic, enhancements to the proposed court's jurisdictional scheme that could vastly increase its usefulness without undermining valid national interests. The proposed court could exercise jurisdiction over certain serious international crimes provided that the affected states have filed declarations accepting the court's jurisdiction over the crime. The proposal assumes that states would file declarations prospectively accepting the court's jurisdiction. In theory, this would set up an international criminal justice system that would operate without requiring any further state consent. However, states also wish to reserve the right to try international criminals in their own courts. The …

Persistent Organic Pollutants: Regime Formation And Norm Selection, Christina S. Chen

Connecticut Journal of International Law

Persistent Organic Pollutants (POPs) are hazardous and potentially life-threatening toxic chemicals. The international community recently agreed to create an international legally binding instrument to control POPs.' Although myriad questions confront the creation of a new regime, this Comment will focus on the types of norms and control strategies that should be devised in order to establish an effective POPs regime. In order to analyze the issue of norm crafting, Part I of this Comment outlines the background of the POPs problem and the current efforts of the United Nations to establish consensus on the need for a POPs regime. Part …

The Threat Or Use Of Nuclear Weapons: Discernable Legal Policies Of The Judges Of The International Court Of Justice, Kazuomi Ouchi

Connecticut Journal of International Law

By a letter dated 19 December 1994, the Secretary-General of the United Nations officially communicated to the Registrar of the International Court of Justice the decision taken by the General Assembly of the United Nations to submit the question of the legality of the threat or use of nuclear weapons to the Court for an advisory opinion. The General Assembly noting, inter alia, that Article 96, paragraph 1, of the United Nations Charter empowers the General Assembly to request the Court to give an advisory opinion on any legal question, decided to request the Court to urgently render its advisory …

Religion And The Public Square: Making Democracy Safe For Religious Minorities, Suzanna Sherry

Vanderbilt Law School Faculty Publications

In 1995, Judge Richard Posner ruled that the state of Illinois could not celebrate Good Friday as a statewide holiday for the public schools.' Closing all Illinois public schools on Good Friday, Posner declared, violated the Establishment Clause of the Constitution by "plac[ing] the support of the state behind a wholly sectarian holiday." The Ninth Circuit has disagreed, upholding Good Friday as a state holiday in Hawaii. Federal courts have similarly reached varying conclusions about the constitutionality of other symbolic endorsements of Christianity, including the use of a cross as part of a government seal, the inclusion of the phrase …

A Tour Of Mistakes, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In these pages, Steven Lubet recently reviewed A Tour of the Calculus, by David Berlinski. Inspired by both the beauty of calculus and Berlinski's description of it, Lubet waxes poetic on the many parallels between the law and calculus. It is completely understandable--even admirable that one might be led to ruminations on the relationship between calculus and one's own discipline. There is little doubt that the subject of calculus stands as one of the great intellectual feats of Western thought. It has had profound implications for physics, engineering, economics and many other disciplines-so why not law? Alas, these philosophical musings …

Who Needs Congress? An Agenda For Administrative Reform Of The Endangered Species Act, J.B. A. Ruhl

Vanderbilt Law School Faculty Publications

This article comprehensively examines the history and content of the numerous administrative reforms of the Endangered Species Act program carried out under the tenure of Department of the Interior Secretary Bruce Babbitt. The assessment is that these reforms provide a tremendous impetus for innovation of species conservation.

Predictors Of Jurors' Decisions And Post-Trial Perceptions Of Child Witness Credibility In A Child Sexual Assault Trial, Janet Murvin Gibson

Masters Theses

The effect of judge’s instructions and jurors’ preconceptions about children’s credibility on juror decision making and post-trial perceptions of children’s credibility was investigated. Also, the relationship between jurors’ post-trial perceptions of children’s credibility and measure of guilt was explored. Jurors’ level of authoritarianism was utilized as a covariate and jurors’ comprehension of the judge’s instructions was considered as a possible mediating influence on their decision making. One hundred and twenty five undergraduate women enrolled in psychology classes at Eastern Illinois University viewed a videotaped simulation of a child sexual assault trial. Participants heard either standard instructions in which the judge …