Law Commons^™

Stop Harassing Her Or We'll Both Sue: Bystander Injury Sexual Harassment, Christopher M. O'Connor

Case Western Reserve Law Review

No abstract provided.

Legislative Deference In Eighth Amendment Capital Sentencing Challenges: The Constitutional Inadequacy Of The Current Judicial Approach, Matthew E. Albers

Case Western Reserve Law Review

No abstract provided.

Table Of Contents

Seton Hall Constitutional Law Journal

No abstract provided.

Witness Immunity: Unconstitutional, Unfair, Unconscionable, Alexander J. Menza

Seton Hall Constitutional Law Journal

No abstract provided.

Fourteenth Amendment - Section Five Enforcement Power - Congress Exceeded Its Constitutional Authority Under The Enforcement Clause Of The Fourteenth Amendment By Enacting The Religious Freedom Restoration Act - City Of Boerne V. Flores, 117 S. Ct. 2157 (1997)., James T. Hunt Jr.

Seton Hall Constitutional Law Journal

No abstract provided.

Illuminating The Possible In The Developing World: Guaranteeing The Human Right To Health In India, Sheetal B. Shah

Vanderbilt Journal of Transnational Law

This Note argues that the recognition of the social right to health offers a step forward in empowering individuals to gain control over their social environments in the developing world. Part II discusses the potential of social human rights to alleviate suffering in the developing world. Social human rights recognize that the state must provide individuals with the basic social conditions necessary to live with human dignity. Part III explores the legal obligations of social rights and their current status in human rights jurisprudence. It also discusses the most pressing challenges facing implementation of social rights at the national level. …

The Sky Is Falling (Or Is It?): International Contracts And The Y2k Problem, Mark B. Baker

Vanderbilt Journal of Transnational Law

Y2K problems at this point in time are reasonably foreseeable due to the amount of attention given the subject. Contracting parties should examine potential Y2K problems arising internally and address them before January 1, 2000. Yet the extent of Y2K problems, be they widespread or solitary occurrences, remains unforeseeable and unpredictable. Even those parties having adequately addressed internal Y2K problems can experience difficulties due to external parties having failed to become Y2K-compliant. This "second tier" of unforeseeability supports the use of excused performance, but the "first tier" foreseeability that Y2K problems potentially exist prevent viable use of the defense. In …

The Civil Law Trust, Maurizio Lupoi

Vanderbilt Journal of Transnational Law

It is generally held that trusts are incompatible with the basic assumptions of civil law systems. In order to discuss this statement one would have to inquire, first, what is meant by the term "trusts"; second, what assumed common characteristics of the civil law systems are being envisaged and declared to bein compatible with trusts; and third, why those characteristics should be incompatible with trusts. It is also commonly held that the Hague Convention of 1984 on the law applicable to and the recognition of trusts concerns only those trusts that are foreign to the jurisdiction in which the rules …

The Role Of Legal Doctrine In The Decline Of The Islamic Waqf: A Comparison With The Trust, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

The starting point of this article is that the same impulses present in societies with Western legal systems to manage family wealth over time have been present in Islamic societies as well. But unlike other legal regimes regulating such impulses, waqf law has been largely unresponsive, especially in light of changing typologies of wealth and socio-economic conditions. A number of factors explain the failure of legal doctrine to respond. The first of these is the religious or divine grounding of waqf law, making it difficult for the law to evolve in a responsive and uncontroversial manner, one that does not …

International Recognition And Adaptation Of Trusts: The Influence Of The Hague Convention, Adair Dyere

Vanderbilt Journal of Transnational Law

The process of bringing English-style trusts into systems that do not have a similar device is fraught with difficulties. This is especially true with respect to efforts directed towards the creation of a domestic trust law within such a system, but it is also true about the adaptation of legal institutions that is necessary in order to recognize trusts created under foreign law, in accordance with Article 11 of the Hague Trusts Convention. Thus far, it can be said that no country that did not have trusts before the Hague Trusts Convention has reacted to the Convention by adopting a …

In Memoriam: Lord Lowry Of Crossgar (1919-1999): A Tribute, John Eric Smithburn

Journal Articles

In the Summer of 1985, I participated in a program in London on international judicial education, sponsored by the Judicial Administration Division of the American Bar Association. The keynote speaker for the program was Robert Lowry, The Lord Chief Justice of Northern Ireland. Lord Lowry noted that there was very little judicial training in Britain at the time and that before the 1960s judicial education didn't exist in Britain. In his address, Lord Lowry boldly advocated compulsory judicial education courses for all judges through the Judicial Studies Board. Our mutual interest in the judiciary and the education of judges began …

Of Hungry Wolves And Horizontal Conflicts: Rethinking The Justifications For Bank Holding Company Liability, Eric J. Gouvin

Faculty Scholarship

To what extent should bank holding companies bear the costs of bank failure? Current banking law provides a number of ways to impose liability on bank holding companies for bank failure. Those devices, however, have developed haphazardly and sometimes rest on inconsistent theoretical foundations. This Article critiques the regulatory justifications that have been offered for holding company liability and offers an alternative justification for imposing liability on holding companies based on the idea that directors of bank subsidiaries suffer from an especially difficult form of horizontal conflict--the situation where the board of directors owes several different duties and chooses to …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

A Proposed Defense To Patent Infringement, Alfonso Garcia Chan

Computer Law Review and Technology Journal

The American patent system is a major catalyst for technological progress and economic growth. In most cases, the system works well to achieve those ends. In rare but significant circumstances, however, the patent system can be manipulated to suppress technological progress. Unlike patent rights in other nations, the American patent grant is a negative right to exclude others. Thus, the patent owner need not practice or license others to practice the invention. Indeed, a patent owner has the right to do nothing for the lifetime of the patent. A patent owner's lack of action, however, could prevent progress in a …

Courting Cyberspace, Al Harrison

Computer Law Review and Technology Journal

Having the ability to practice law in cyberspace has virtually metamorphosed the legal landscape into an amorphous mass. In this murky region, trying to apply well-established legal principles creates a colloidal covering of uncertainty. Besides compelling changes in the way legal services are delivered, this metamorphosis has introduced numerous practical and ethical concerns for lawyers and law firms. For example, consider the following questions:

• With whom are you communicating by sending e-mail?
• Are you inadvertently providing free legal advice to an unknown person in an unknown venue?
• Have you inadvertently established an attorney-client relationship?
• Are you licensed in the state …

Justification By Faith, Carl E. Schneider

Articles

In June 1997 a sixteen-year-old girl named Shannon Nixon began to feel ill. Her parents belonged to the Faith Tabernacle Church, one of a number of American sects which believe that illness should be treated spiritually rather than medically. Accordingly, the Nixons prayed for Shannon and took her to be anointed at their church. Shannon reported that she felt better and that the spiritual treatment had gained her her victory-her recovery. Before long, however, Shannon again felt ill. She became weaker and weaker and then fell into a coma. A few hours later she died. An autopsy revealed that she …

Dna Database Searches And The Legal Consumption Of Scientific Evidence, Peter Donnelly, Richard D. Friedman

Articles

DNA evidence has transformed the proof of identity in criminal litigation, but it has also introduced daunting problems of statistical analysis into the process. In this Article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council ("NRC"), each of which has carried great authority with the American courts on …

Humanities And The Law: A Kinship Of Performance, James Boyd White

Articles

The following essay is adapted from “A Visiting Scholar Considers The Law and the Humanities”, which appeared in The Key Reporter of Phi Beta Kappa in summer 1998 as a partial report of the author’s year as a Phi Beta Kappa Visiting Scholar. The selection here is a summary of a lecture the author delivered during his travels to eight colleges and universities throughout the United States.

Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman

Articles

In Lilly v. Virginia, the Supreme Court once again has the opportunity to grapple with the meaning of the Confrontation Clause of the Sixth Amendmel).t. The basic facts of Lilly are simple, for they present the ageold problem of accomplice confessions. Three men, Gary Barker and Ben and Mark Lilly, went on a crime spree, during which one of them shot to death a young man they had robbed and kidnaped. Ben Lilly was charged with being the triggerman, and Barker testified to that effect at Ben's trial. Mark did not testify. But Mark had made a statement to the …

Doing Well And Doing Good: The Careers Of Minority And White Graduates Of The University Of Michigan Law School, David L. Chambers, Richard O. Lempert, Terry K. Adams

Articles

Of the more than 1,000 law students attending the University of Michigan Law School in the spring of 1965, only one was African American. The Law School faculty, in response, decided to develop a program to attract more African American students. One element of this program was the authorization of a deliberately race-conscious admissiosn process. By the mid-1970s, at least 25 African American students were represented in each graduating class. By the late 1970s, Latino and Native American students were included in the program as well. Over the nearly three decades between 1970 and 1998, the admissions efforts and goals …

Sticks And Stones, Phoebe C. Ellsworth

Articles

I believe that research should be refuted by research. More and more of our scarce journal space is being taken up by attacks, rebuttals, and rebuttals to the rebuttals, often ending with a whimper of recognition that the adversaries were not so very far apart to begin with, and that the only way (if possible) to resolve the disagreement is through empirical research. Communication of scientific disagreement does not require a published article. Grant proposals and manuscripts submitted to refereed journals like this one are sent out to reviewers, who provide written evaluations that are communicated to the author. Papers …

Capital Formation And The Internet: An Alternative Source Of Equity Financing For Small Businesses, Brandon W. Freeman

Computer Law Review and Technology Journal

Traditional methods of equity financing are unrealistically expensive for most small companies with capital needs. Under federal and state disclosure laws, start-up ventures must pay for printing a prospectus, advertising, and mailing, along with legal fees and other expenses, which are often beyond their means. But the Internet is expanding to enable small companies in their early growth stages to raise money from outside equity investors. By accommodating new technologies, the Securities and Exchange Commission (SEC) and state regulators have aided the Internet's expansion into equity financing.

In October 1995, through a Securities Act Release, the SEC endorsed and encouraged …

Saving Trees And Saving Time: Researching Environmental Law On The Internet, Jennifer Hodgkins

Computer Law Review and Technology Journal

Conducting research on environmental law typically involves using federal and state statutes, administrative regulations, caselaw, law reviews, journals, and other resources in highly technical and scientific areas. Many of these resources are now available on the Internet, enabling lawyers to take advantage of free and convenient access to information. This paper focuses on sites specifically pertaining to environmental law; it will not address more general sites that provide statutes, administrative regulations, and caselaw. Internet sites that may be useful to environmental lawyers are grouped into the following twelve categories:

(1) Federal Government Agencies (page 38)

(2) Texas Government Agencies (page …

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Articles

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Articles

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …

The Cutting Edge Of Poster Law, Michael A. Heller

Articles

Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

Living With The Death Penalty, Samuel R. Gross

Articles

The debate over the death penalty in the United States - such as it is - is framed in terms of criminal justice policy. The issues are the same ones we consider when the question is the length of prison sentence for a drug crime: Does the defendant deserve the penalty? Is it cost effective by comparison to other available sanctions? Will it deter others from committing the crimes for which he was convicted? Can we impose this punishment fairly? Can we make sure that innocent people are not condemned?

Why Did Voters Reject Michigan's Physician-Assisted Suicide Initiative?, Yale Kamisar

Articles

In November 1997, when Oregon voters reaffirmed their support for doctor-assisted suicide, some commentators called it a turning point for the "right to die" movement. But the lopsided defeat of a similar proposal in Michigan is a better barometer: in general, assisted suicide continues to fare badly in the political arena.

The Three Threats To Miranda, Yale Kamisar

Articles

Miranda v. Arizona (1966) was the centerpiece of the Warren Court's "revolution" in American criminal procedure. Moreover, as Professor Stephen Schulhofer of the University of Chicago Law School has recently noted, a numbir of the Miranda safeguards "have now become entrenched in the interrogation procedures of many countries around the world." But Miranda is in serious trouble at home.