Law Commons^™

Would Adr Have Saved Romeo And Juliet?, Pam Marshall

Osgoode Hall Law Journal

Like many disputes, Romeo and Juliet is a story with no winners; the outcome is destined to be lose-lose. Disputes are an inevitable part of human interaction and people need to learn effective and reasonable ways of dealing with their disputes. The question is how can this be done in a way that leaves people intact. The article compares and contrasts two modes for resolving disputes: adjudication and alternative dispute resolution (ADR). The article looks at what happens when disputes arise-how do problems become "disputes" and what do people do about them? The role of lawyers as dispute creators as …

Why Arbitrate?: Ontario's Recent Experience With Commercial Arbitration, Randy A. Pepper

Osgoode Hall Law Journal

In 1988, Ontario adopted the International Commercial Arbitration Act and in January 1992 the Arbitration Act, 1991 came into force for domestic arbitrations. These statutes and similar legislation in other provinces pushed Canadian arbitration regimes into the forefront of industrial nations. However, there has not been a significant increase in the number of commercial arbitrations being conducted in Ontario. This article suggests that Ontario is ideally placed to become an important centre for domestic and international arbitration. The author asserts that if commercial parties and their counsel were more familiar with the benefits of the arbitral process and with the …

Common Law Duty To Serve And Protection Of Consumers, Jim A. Rossi

Vanderbilt Law School Faculty Publications

This article addresses the implications of retail competition in public utility industries, particularly electricity, for utility service obligations. After tracing the history of the common law duty to serve applicable to public utilities, the efficiency of utility service obligations in the context of rate regulation is explored. Retail competition, many suggest, poses a threat to utility service obligations. However, regulators can minimize the inefficiency of traditional utility service obligations without sacrificing the benefits of retail competition if they pay attention to the structural efficiency of competitive retail markets. The article advocates imposition of basic service obligations on the DisCo and …

What Juries Can't Do Well: The Jury's Performance As A Risk Manager, W. Kip Viscusi, Reid Hastie

Vanderbilt Law School Faculty Publications

Can juries handle complex cases? One way to frame this question in behavioral science terms is to ask: What tasks can juries perform well and what tasks will they perform poorly? Our basic precept is that the legal system should ask juries to perform tasks that they are good at performing and should not require juries to carry out tasks that they cannot perform well. A second guiding theme in our approach to the issue of jury competency is that the most relevant, most useful analyses of jury performance are based on empirical observations and data, not on rational analyses …

Psychiatric Evidence In Criminal Trials: To Junk Or Not To Junk?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This Article begins, in Part I, with a brief review of the past four decades" of psychiatric and psychological testimony in criminal trials (henceforth referred to simply as "psychiatric testimony"). Although this review cannot be called comprehensive, it does make clear that, contrary to what the popular literature would have us believe, psychiatric innovation is neither at an all time high nor the prevalent form of opinion testimony by mental health professionals. At the same time, such "nontraditional" expert opinion from clinicians, on those rare occasions when it does occur, has changed over the past few decades in both content …

The Endangered Species Act And Private Property: A Matter Of Timing And Location, J.B. Ruhl

Vanderbilt Law School Faculty Publications

For all the controversy surrounding the effect of the Endangered Species Act ("ESA") on private property, precious little information has accompanied the heated calls for strengthening or weakening the law's land use proscriptions. Preservationist groups and property rights groups alike depend on staking out higher moral ground and producing "poster child" stories of imperiled species or property owners. The Fish and Wildlife Service ("FWS"), which implements the ESA for most of the listed endangered and threatened species, has compiled reams of data on its administrative functions' in support of its recent efforts through administrative (in lieu of legislative) reform to …

The Common Law "Duty To Serve" And Protection Of Consumers In An Age Of Competitive Retail Public Utility Restructuring, Jim Rossi

Vanderbilt Law School Faculty Publications

This article addresses the implications of retail competition in public utility industries, particularly electricity, for utility service obligations. After tracing the history of the common law duty to serve applicable to public utilities, the efficiency of utility service obligations in the context of rate regulation is explored. Retail competition, many suggest, poses a threat to utility service obligations. However, regulators can minimize the inefficiency of traditional utility service obligations without sacrificing the benefits of retail competition if they pay attention to the structural efficiency of competitive retail markets. The article advocates imposition of basic service obligations on the DisCo and …

Aggravation And Mitigation In Capital Cases: What Do Jurors Think?, Stephen P. Garvey

Cornell Law Faculty Publications

The Capital Jury Project in South Carolina interviewed jurors who sat in forty-one capital murder cases. The Project asked jurors a range of questions relating to crime, the defendant, the victim, the victim's family, the jurors' deliberations, the conduct of counsel, and background characteristics of the jurors. In this essay, Professor Stephen P. Garvey presents and examines data from the Project relating to the importance jurors attach to various aggravating and mitigating factors. The results suggest that jurors have a discernible moral compass. According to the data, jurors found especially brutal killings, killings with child victims, future dangerousness, and lack …

Protecting Endangered Species Without Regulating Private Landowners: The Case Of Endangered Plants, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

The Challenge Of Prosecuting Organized Crime In The United States: Procedural Issues, Paul Marcus

Faculty Publications

No abstract provided.

Commercial Codification As Negotiation, Peter A. Alces, David Frisch

Faculty Publications

No abstract provided.

"Arranger Liability" Under The Comprehensive Environmental Response, Compensation, And Liability Act (Cercla): Judicial Retreat From Legislative Intent, David W. Lannetti

William & Mary Law Review

No abstract provided.

The "Dirty Little Secret": Why Class Actions Have Emerged As The Only Viable Option For Women Inmates Attempting To Satisfy The Subjective Prong Of The Eighth Amendment In Suits For Custodial Sexual Abuse, Amy Laderberg

William & Mary Law Review

No abstract provided.

The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan

Vanderbilt Law Review

Recent decisions have signaled a subtle shift away from the Supreme Court's categorical approach to the issue of federal preemption of state law, and toward a preemption continuum in which the implied preemption theories may inform an express preemption analysis. Yet, the Court as a whole has avoided addressing the issues arising from the integration of the doctrines. In this Article, Professor Jordan explores some of these difficult issues. The conceptual issues concern when and how the implied theories should be used in an analysis involving an express preemption clause. She analyzes the Court's recent use of the implied theories …

New Institutions For Old Neighborhoods, Robert C. Ellickson

Duke Law Journal

Residential Community Associations are now the norm in new suburban developments, and in this Article, Professor Robert Ellickson suggests that existing neighborhoods, in inner cities and elsewhere, would benefit from similar institutions. Specifically, he proposes the creation of Block Improvement Districts. These District, would typically be formed by supermajorities of property owners, who would need to have the power to override objectors to avoid the free rider problem inherent in many kinds of group action. Once formed, these Districts would collect fees from member property owners and, in return, would provide block-level public goods. After exploring both the theoretical and …

Can A California Litigant Prevail In An Action For Legal Malpractice Based On An Attorney’S Oral Argument Before The United States Supreme Court?, Krista M. Enns

Duke Law Journal

No abstract provided.

A Black Party? Timmons, Black Backlash And The Endangered Two-Party Paradigm, Terry Smith

Duke Law Journal

In a pair of 1997 electoral decisions, the Supreme Court decided that Minnesota could prohibit fusion candidacies in the interest of maintaining a strong two-party system, but that Georgia could not create two new majority-minority congressional districts because the redistricting process had been impermissibly infected by race. In this Article, Professor Smith argues that these two decisions unavoidably conflict. While the fusion case reaffirmed the states' interest in maintaining a strong two-party system, the racial gerrymandering case severely undercut the states' ability to achieve this interest in jurisdictions where the major parties are racially stratified. He demonstrates that blacks operating …

De Minimis Discrimination, Rebecca H. White

Scholarly Works

Is there any basis for a de minimis exception to our employment discrimination laws? This Article suggests a way of analyzing the issue of de minimis discrimination that comports with the language of and policies underlying Title VII and also with judicially developed disparate treatment theory. It approaches this project from a normative and doctrinal, not a deontological, perspective. Congress has enacted laws prohibiting discrimination in employment, and the appropriate question, in the first instance, is how those statutes should best be interpreted. Although the focus is on Title VII, the analysis undertaken here may be usefully applied to other …

Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt

Scholarly Works

This Essay analyzes defamation law as it applies to the media. Part I summarizes the state of defamation law prior to the 1990 Supreme Court decision in Milkovich v. Lorain Journal Co., when opinion was presumed immune from liability. Part II examines the holding in Milkovich, which suggests the potential liability for recklessly defamatory statements couched as or in the context of opinion. Part III reviews post-Milkovich decisions during the 1990's. This Essay concludes that the predictions of Milkovich were accurate in many jurisdictions and could apply to televised allegations during the coverage of the Clinton affair. …

Mend It Or End It? What To Do With The Independent Counsel Statute, Julian A. Cook

Scholarly Works

The tenure of Independent Counsel Kenneth Starr has generated much debate among scholars, politicians, and the media in recent years regarding the efficacy of the independent counsel statute, which is scheduled to expire in June 1999. Enacted in response to the Watergate saga, and particularly the infamous “Saturday Night Massacre,” the independent counsel statute was designed to remove politics from the prosecution of executive branch officials and to foster public confidence in the prosecutorial process. Advocates claim that the statute, though flawed, is the best system available to address alleged criminal wrongdoing by high-ranking executive branch officials, as well as …

A Loss Of Control: Privilege Cases Diminish Presidential Power, Neal Devins

Popular Media

No abstract provided.

The Curt Flood Act Of 1998: A Hollow Gesture After All These Years?, Edmund P. Edmonds

Journal Articles

This article discusses the Curt Flood Act of 1998 and explores the nonstatutory labor exemption the Supreme Court has applied to professional sports leagues. It also explores the likely impact of the Curt Flood Act on the rights of players or managers to use antitrust laws effectively against one another.

Table Of Contents, Cardozo Journal Of International And Comparative Law, Vol. 6, Iss. 2

Cardozo Journal of International and Comparative Law

No abstract provided.

Notes On Constitutionalism For A 21st-Century Russian President, Dana Dallas Atchison

Cardozo Journal of International and Comparative Law

Are short-term political interests compromising prospects for a constitutional society in Russia? In Part I, this paper first considers the elements that contribute to constitutionalism. These include a constitution, democracy, public participation, the rule of law, an open society, a history of constitutionalism, public support for a constitutional order, importance of the individual, and an independent judiciary. Part II analyzes these themes against provisions in Russia's new Constitution and concludes that many articles have been compromised by Boris Yeltsin's personal political interests.

Part III appraises practical considerations that impact constitutional elements such as the public's expectations and concerns. Part III …

Separation Of Powers In State Constitutional Law - Introduction, Carl T. Bogus

Law Faculty Scholarship

No abstract provided.

Whither Weber?, Michael J. Yelnosky

Law Faculty Scholarship

No abstract provided.

Joint Defense Agreements And Disqualification Of Co-Defendant's Counsel,, Arnold Rochvarg

All Faculty Scholarship

How should courts rule on the issue of joint defense agreements and motions for disqualification of another joint defense member's attorney in subsequent litigation? After analyzing prior cases that attempt to resolve the issue, it is clear that no generally accepted analysis of the disqualification issue exists. This article proposes an analytic framework for courts to use when ruling on such motions for disqualification arising in the context of prior joint defense agreements.

Although some courts have found an implied attorney-client relationship among all members and attorneys of the joint defense agreement, this view is flawed and based on a …

Book Review Of Forced Justice: School Desegregation And The Law And Race Relations Litigation In An Age Of Complexity, Davison M. Douglas

Faculty Publications

No abstract provided.

Court Interpreting Services In State And Federal Courts: Reasons And Options For Inter-Court Coordination, William E. Hewitt, Paula Hannaford-Agor, Catherine Gill, Melissa Cantrell

Faculty Publications

In 1978 a federal law marked the beginning of standard setting and professionalization of court interpreters through testing. In 1995, an entity now called the Consortium for State Court Interpreter Certification was created by the National Center for State Courts and four founding states (Minnesota, New Jersey, Oregon, and Washington.) The Consortium was created as a way to ameliorate shortages of resources and expertise to implement standards for interpreting proficiency at the state level, problems shared by virtually all of the states. Now, as a consequence of institutionalization, a forum has been created wherein exchange of information and expertise, and …

Volume 23, No. 2

The Weldon Times

A student-run newspaper published at the School of Law at Dalhousie University.

Editors: David Reble, Aswani K. Datt, Nicholas Lenco, Greg Moores