Law Commons^™

Municipal Involvement In International Relations, John Jack William Hilgers

Theses and Dissertations in Urban Services - Urban Management

The purpose of this study is to examine municipal involvement in international relations in the United States. This municipal phenomenon is occurring concurrently with both a shift away from the traditional nation-centric structure of international relations under the influence of globalism as well as a sharp decline in intergovernmental aid. The research questions were: (1) What are the indicators that define municipal involvement in international relations? and (2) What is the extent of that involvement?

Extensive qualitative and research was conducted in the form of an exploratory literature survey which was set forth in narrative analysis to overcome the paucity …

United States V. Adlman: Protection For Corporate Work Product?, Charles M. Yablon, Steven S. Sparling

Articles

The Adlman case, decided by the U.S. Court of Appeals for the Second Circuit, significantly expanded the scope of the work product doctrine, particularly affecting corporate legal documents. The court adopted the "because of litigation" test, determining that documents created in anticipation of future litigation are protected, even if they serve dual purposes such as business strategy. This ruling has implications for how companies prepare for transactions and disputes, potentially shielding more strategic documents from discovery while maintaining exceptions for routine or regulatory documents.

Virtue And Criminal Negligence, Kyron J. Huigens

Articles

No abstract provided.

Spain Returns To Trial By Jury, Stephen C. Thaman

All Faculty Scholarship

In 1995, the Spanish Parliament reenacted trial by jury in criminal cases by implementing a mandate of the 1978 post Franco Spanish Constitution. This article discusses the 17 year dispute, following the ratification of the democratic post-Franco Spanish Constitution, on whether Article 25 mandated the reintroduction of lay participation in the criminal trial, and, if so, whether in the form of the classic jury or a continental European style court with lay assessors. This article analyzes the Law on Trial by Jury and its implementation in the first year of trials, and references Spain’s experience with trial by jury in …

Resurrecting The Dodo: The Unfortunate Re-Emergence Of The Puffery Defense In Private Securities Actions, Jennifer O'Hare

Faculty Publications

The conventional wisdom is that the puffery defense is inapplicable in securities regulation. However, appellate courts in almost every federal circuit have recently used the puffery defense to dismiss private securities fraud actions that were based on vague statements of corporate optimism. This Article demonstrates that the courts have misused the puffery defense and have improperly insulated companies from liability for their misrepresentations. It contends that the assumptions justifying the use of the puffery defense are not present in securities transactions and that the federal securities laws have expressly rejected the very doctrine underlying the puffery defense-caveat emptor. Arguing that …

Junior Secured Creditors And The Automatic Stay, David G. Carlson

Articles

No abstract provided.

Race And The Victim: An Examination Of Capital Sentencing And Guilt Attribution Studies, Cynthia Lee

GW Law Faculty Publications & Other Works

This article examines the effect of the race of the victim on legal decision making in capital and non-capital criminal cases. A large body of research on race and capital sentencing indicates that the crime victim's race affects the prosecutor's decision to seek, and the jury's decision to recommend, the death penalty. The most well known of these is undoubtedly the Baldus study, which provided the data underlying the defendant's challenge to the Georgia death penalty regime in McCleskey v. Kemp. Less well known are empirical analyses conducted since the Supreme Court rejected McCleskey's challenge. The article reviews several of …

Rights, Wrongs, And Recourse In The Law Of Torts, Benjamin C. Zipursky

Vanderbilt Law Review

Cardozo's opinion in Palsgraf v. Long Island Railroad Co.' hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show "'a wrong' to herself; i.e., a violation of her own right." Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, "eloquent bluff." Small wonder, then, that readers typically turn to "reasonable foreseeability" as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case, despite Cardozo's pronouncement that "W[the law of causation, remote …

Archibald Cox: Teacher, David J. Seipp

Faculty Scholarship

Archie Cox is a teacher. He taught generations of law students at Harvard Law School and, more recently, at Boston University School of Law. He left the classroom on three occasions, reluctantly, when first President Truman, then President Kennedy, then President Nixon's Attorney General called Professor Cox to Washington to play a part on the national stage. In his first weeks as Watergate Special Prosecutor, Cox carried with him a stack of blue books, Labor Law examinations he still had to grade (p. 263). In the public eye, his straight-backed demeanor, his familiar crew cut, half-glasses, bow tie, and tweeds …

Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond "Empty" Toleration To Toleration As Respect, Linda C. Mcclain

Faculty Scholarship

This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …

Transgenic Agriculture: Biosafety And International Trade, Michael S. Baram, Calestuous Juma, Sheldon Krimsky, Rufus C. King

Faculty Scholarship

We stand at the threshold of a new century that will bring novel methods of producing foods, industrial materials, pharmaceuticals, and other products important to society and industry. Today's session will, therefore, address a subject of great importance: the introduction of genetically modified crops, livestock, micro-organisms, and other substances into agriculture and related fields, made possible by American and foreign corporate biotechnology.

Productivity Adjustments And Learning-By-Doing As Human Capital, James Bessen

Faculty Scholarship

This paper measures plant-level productivity gains associated with learning curves across the entire manufacturing sector. We measure these gains at plant startups and also after major employment changes. We find: 1) The gains are strongly associated with a variety of human capital measures implying that learning-by-doing is largely a firm-specific human capital investment. 2) This implicit investment is large; many plants invest as much in learning-by-doing as they invest in physical capital and much more than they invest in formal job training. 3) This investment differs persistently over industries and is higher with greater R&D. 4) Consistent with a learning-by-doing …

International Law And International Relations Theory: A New Generation Of Interdisciplinary Scholarship, Anne-Marie Slaughter, Andrew S. Tulumello, Stepan Wood

All Faculty Publications

Nine years ago, Kenneth Abbott published an article exhorting international lawyers to read and master regime theory, arguing that it had multiple uses for the study of international law. 1 He went as far as to call for a "joint discipline" that would bridge the gap between international relations theory (IR) and international law (IL). Several years later, one of us followed suit with an article mapping the history of the two fields and setting forth an agenda forjoint research. 2 Since then, political scientists and international lawyers have been reading and drawing on one another's work with increasing frequency …

Policing For Profit: The Drug War’S Hidden Economic Agenda, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

In the following pages, we first describe in more detail how the Drug War’s financial largess has kept its soldiers in business. We then discuss the destructive impact of this economic regime, marshaling evidence to show that the corruption of law enforcement priorities and wholesale miscarriages of justice can be attributed to the operation of these incentives. Finally, we explore potential legal and legislative remedies through which law enforcement may regain its bearings.

Our investigation focuses on the economic underpinnings of current drug law enforcement policy. Drug policy also raises an extraordinarily broad range of moral, health, and criminological concerns, …

Adr Developments Abroad: Masters In Mediation - European Style!, Nadja Alexander

Research Collection Yong Pung How School Of Law

In Australia when we think of mediationtraining, we generally envisage a four orfive day training course run by amediation service provider or educationalinstitution. Many Australian universitiesalso offer postgraduate studies inmediation and ADR which generallyprovide a combination of theory and skillsdevelopment subjects. Such studiestypically take the form of postgraduatediplomas or Masters degrees offered by auniversity department or a multi-disciplinarymediation centre. Notably, there are norequirements that participants haveprevious qualifications or experience inmediation. One direct effect of this ‘open’policy has been to lower the standard ofpostgraduate teaching and learning in thisfield. For example, postgraduate subjectsin mediation in many law schools aroundthe country offer …

Primum Non Nocere: The Expanding "Honest Services" Mail Fraud Statute And The Physician-Patient Fiduciary Relationship, Gregory D. Jones

Vanderbilt Law Review

In one case, a physician refers a patient to a certain hospital in return for an undisclosed referral fee from the hospital. In another, a physician decides not to refer a patient to a specialist for further examination. The physician, however, does not disclose to the patient that part of the cost of sending the patient to the specialist would come out of the physician's potential earnings. In the previous examples, has the physician breached her fiduciary duty to the patient by not disclosing her own financial interest in the patient's treatment? If so, the physician could be guilty of …

Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke

Faculty Scholarship

In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …

Marriage Contracts And The Family Economy, Katharine B. Silbaugh

Faculty Scholarship

One simplified view of contract law is that the state enforces private bargains without looking into the substance of those bargains. From this contractual perspective marriage might look like a contract to exchange services and goods: love, money, the ability to have and raise children, housework, sex, emotional support, physical care in times of sickness, entertainment and so forth. But when the parties to a marriage put these terms in writing, courts only enforce the provisions governing money. This contract/family law rule of selective enforcement disproportionately benefits those who bring more money to a marriage, who are more likely to …

Grounded Applications: Feminism And Law At The Millennium, Katharine B. Silbaugh

Faculty Scholarship

The conference topic is feminism in the twenty-first century, a dialogue between academics and practicing attorneys. The first order of business will be to resist the millennium invitation to come up with evermore novel, overarching formulations of the mission and means of feminism. At the end of the twentieth century we know quite a bit about the problems presented by feminists and the problems within feminism. We have had a long history of insightful intellectual discourse on questions of equality and on the meaning of gender. We also know that it takes time to absorb and apply broad insights in …

Bridging The Gap In Forum Selection: Harmonizing Arbitration And Court Selection, William W. Park

Faculty Scholarship

More than one thoughtful international business manager has been haunted by the fear that foreign judges might not always respect Moses' admonition to impartiality., Concern that the other side will have an unfair advantage in its home court has often driven lawyers to include in international contracts one of two forum selection devices:2 an arbitration agreement entrusting the controversy to a private decision-maker or a courtselection clause granting adjudicatory power to courts at a designated location.3 Both mechanisms can enhance political and procedural neutrality, thereby facilitating business ventures when parties have a mutual mistrust of each other's courts and a …

Defending The Middle Way: Intermediate Scrutiny As Judicial Minimalism, Jay D. Wexler

Faculty Scholarship

In the last few years, Court-watchers have been particularly busy critiquing the constitutional decisions of the splintered Rehnquist Court. Two of the recurring critiques have posited that the Justices are overly activist and that their opinions are needlessly confusing. American Lawyer's Stuart Taylor, for example, has decried both the "jurisprudential mess" of the Court's recent redistricting decisions' as well as the disturbing activism that Taylor believes marks each of the Equal Protection decisions of the 1995-96 Terman activism that has led him to wonder "whether there is any life at all left in the idea of judicial restraint."' Eva Rodriguez …

The American Bar Association And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

The ABA explains its proposed moratorium on capital punishment in part on the ground that recent decisions rendered by the Supreme Court and legislation enacted by Congress limit the ability of prisoners under sentence of death to challenge their sentences in the federal courts.' According to the ABA, the Supreme Court has placed numerous hurdles in the path of prisoners who apply to the federal courts for a writ of habeas corpus, claiming that their convictions were obtained or their sentences were imposed in violation of federal law. Congress, for its part, has added even more barriers in Title I …

Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

Scholarly Works

In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative …

Introductory Note: Symposium On Lawyering And Personal Values – Responding To The Problems Of Ethical Schizophrenia, Samuel J. Levine

Scholarly Works

In recent years, legal practitioners and scholars alike have identified a growing crisis in the legal profession. Increasingly, lawyers feel dissatisfied with the roles they are expected to play and the conduct demanded of them. In particular, many lawyers see a widening gap between their personal values and those employed in legal practice. In response to the dichotomy between personal and professional values, some lawyers attempt to develop a corresponding dichotomy in their personalities, separating the “professional self” from the “personal self.” Such a response, however, may lead to a kind of “ethical schizophrenia,” a condition in which an individual …

Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine

Scholarly Works

In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the …

Halacha And Aggada: Translating Robert Cover’S Nomos And Narrative, Samuel J. Levine

Scholarly Works

Levine takes a look at Robert Cover's 1983 Harvard Law Review article, Nomos and Narrative. Nomos is characterized by its heavy reliance on Jewish sources as a basis for analyzing contemporary American legal theory. The basis of narrative is the thesis that no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning, so law becomes not merely a system of rules to be observed, but a world in which we live. Cover's explanation of these ideas coincided with and influenced the emergence of what has become known as "legal storytelling". In …

Section 1983 Litigation, Martin A. Schwartz, George C. Pratt

Scholarly Works

No abstract provided.

Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz

Scholarly Works

No abstract provided.

Civil Rights Division Association Symposium: The Civil Rights Division At Forty, Howard Glickstein, Stephen J. Pollack, Brian Landsberg, Harold Greene, St. John Barrett, Paul F. Hancock, Muriel Spence, Michael Middleton, James A. Turner

Scholarly Works

No abstract provided.

Fragments On The Deathwatch, Louise Harmon

Scholarly Works

No abstract provided.