Law Commons^™

Ethics And Professionalism In Non-Adversarial Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Traditional notions and rules of professionalism in the legal profession have been premised on particular conceptions of the lawyer's role, usually as an advocate, occasionally as a counselor, advisor, transaction planner, government official, decision maker and in the recent parlance of one of this symposium's participants-a "statesman [sic]. '" As we examine what professionalism means and what rules should be used to regulate its activity, it is important to ask some foundational questions: For what ends should our profession be used? What does law offer society? How should lawyers exercise their particular skills and competencies?

Do The Haves Come Out Ahead In Alternative Justice Systems? Repeat Players In Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Marc Galanter's essay, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change (Why the "Haves" Come out Ahead), published twenty-five years ago, set an important agenda for those who care about the distributive effects of legal processes, including those of us who have been engaged in jurisprudential, intellectual, and empirical debates about the relative advantages and disadvantages of alternative and conventional legal procedures. As a document of legal intellectual history, this Article was formed in the crucible of the Legal Mobilization and Modernization program at Yale Law School that spawned so many "law and . …

Affirmative Action And Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The contemporary debate about race in the United States is perplexing. Each side seems genuinely to feel distressed at the demands being made by the other. Racial minorities point to Dred Scott's insistence on racial castes, Plessy's endorsement of official segregation, and Brown's reluctance to remedy unlawful discrimination as evidence that the white majority is inevitably inclined to advance its own interests at minority expense. Minority group members, therefore, tend to argue that the only way to arrest this majoritarian inclination is through the use of race-conscious remedial programs that will ensure an equitable distribution of resources. Most members of …

Dickinson V. Zurko: Limits On The Federal Circuit's Standard Of Review, Sue Ann Mota

Computer Law Review and Technology Journal

Standards ofreview matter -or at least we think they do. After receiving an unfavorable decision from an administrative agency, a party faces a high hurdle on appeal if the standard of review is quite deferential. In Dickinson v. Zurko, the Supreme Court recently held that decisions of the Patent and Trademark Office (PTO) must be reviewed under the relatively lax scrutiny required by the Administrative Procedure Act (APA). In contrast, the Federal Circuit had claimed the right to use the tougher "clearly erroneous" standard in Federal Rule of Civil Procedure 52(a).

Rejecting the historical, statutory, and policy reasons of …

The Ghost In The Computer: Radio Frequency Interference And The Doctrine Of Federal Preemption, Ralph H. Brock

Computer Law Review and Technology Journal

The "Police Blotter" feature in a local Texas newspaper sets the scene. A man had reportedly complained to the police that a neighbor's use of a citizens' band (CB) radio was interfering with his business. He could hear the neighbor's CB radio transmissions on his telephone and through his computer speakers. After installing filters on his telephone and complaining to the FCC, the man had filed a criminal mischief complaint with the local police. Unfortunately for him, though, the local police have no jurisdiction.

Drafting A Patent Noninfringement Opinion Letter In Light Of Markman And Warner-Jenkinson, Barry Dove

Computer Law Review and Technology Journal

This article provides a practical guide to drafting a patent noninfringement opinion letter in light of two recent U.S. Supreme Court decisions: Markman v. Westview Instruments, Inc. and Warner-Jenkinson Co. v. Hilton Davis Chemical Co. The guidelines offered here do not represent the only way to write a noninfringement opinion letter. But if they are followed, the opinion letter should protect the interests of both the client and the patent attorney.

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

The Domain Name Game: Applying Trademark Law To An Internet Tug Of War, Deanna L. Kendall

Computer Law Review and Technology Journal

This article focuses on the unique problems that the domain name registration system creates for traditional trademark law. First, the article discusses the Internet and explains how the domain name system works. Next, it identifies the trademark law that is implicated by the domain name system, paying particular attention to the FTDA. Then, it discusses nonjudicial remedies that may be used by trademark owners and domain name holders to resolve disputes. Finally, it analyzes the current caselaw in the area of domain name disputes and predicts what courts will do when faced with these novel and complex issues.

A Man's Word And Making Money: Contract Law In New York, 1920-1960, William E. Nelson

MC Law Review

No abstract provided.

Table Of Contents-Issue 2, Mc Law

MC Law Review

Table of Contents - Issue 2

Cd-Rom Filings At Trial And Beyond, Clint F. Sare

Computer Law Review and Technology Journal

For motions and briefs, using digital formats - such as a CD-ROM format - may provide significant benefits. Very few courts, however, accept electronic documents for filing in place of paper documents. Thus, for now, computer media may be used only to supplement those traditional filings. This paper discusses the following issues related to CD-ROM filings: (1) when CDROM filings may be allowed in trial and appellate courts; (2) what the disk may and should contain; and (3)whattechnical requirements may apply to such CDROM filings.

Because CD-ROM filings are far from standard, and are sometimes unacceptable, this article is necessarily …

A Jurisprudence In Disarray: On Battery, Wrongful Living, And The Right To Bodily Integrity, Mark Strasser

San Diego Law Review

The right to bodily integrity is firmly entrenched in the right to privacy jurisprudence. An individual who has that right violated by being subjected to an unwanted touching can sue for damages. For example, an individual who receives medical treatment against her will can bring an action for battery, even if that treatment provides her a net benefit.' Yet, the determination of whether our current system provides either sufficient compensation for the victim of a nonconsensual physical invasion or a sufficient disincentive to possible tortfeasors to prevent such invasions is only possible after the potential damages for such invasions are …

Must Post-Termination Procedural Due Process Include A Full, Trial-Like Evidentiary Hearing? A Critique Of Townsel V. San Diego Metropolitan Transit Development Board

San Diego Law Review

The due process clause of the Fourteenth Amendment has been held to prohibit the deprivation of a constitutionally protected property interest without "appropriate procedural safeguards."' The California Court of Appeal for the Fourth District recently decided what procedural safeguards were appropriate for a post-termination hearing following the discharge of a public employee. In Townsel v. San Diego Metropolitan Transit Development Board, the court held that all public employees removable only for cause are entitled to a full, trial-like post-termination evidentiary hearing where the government employer must prove its case against the discharged employee. This Casenote questions the Townsel court's holding.

The First Women Members Of The Supreme Court Bar, 1879-1900, Mary L. Clark

San Diego Law Review

In 1879, Belva A. Lockwood of Washington, D.C., became the first woman member of the bar of the U. S. Supreme Court. Lockwood had applied for admission to the bar three years earlier, but had been refused on the ground that no woman had ever been admitted and thus there was no precedent for women's admission. Not easily defeated, Lockwood lobbied Congress to amend the rules governing admission of attorneys to the Supreme Court bar to allow for women as well as men. In February, 1879, Congress adopted "an Act to relieve certain legal disabilities of women," which authorized women …

Temporal Units Of Prosecution And Continuous Acts: Judicial And Constitutional Limitations

San Diego Law Review

Part II will examine the

historical development and the Supreme Court's application of the so- called rule of lenity when adjudicating cases involving statutes with

unclear units of prosecution Part II will also examine the manner in which unclear draftsmanship has been treated in other areas of law and

will compare those areas of law with the rationale behind the rule of lenity. Finally, Part II will conclude by arguing that the rule of lenity creates a presumption opposing multiple prosecutions for the continuing violation of a statute, unless there is clear legislative intent to the contrary. Part M11 will …

Race, Space, And Place: The Geography Of Economic Development, Audrey G. Mcfarlane

San Diego Law Review

In 1993, Congress authorized a community and economic development program called The Empowerment Zone and Enterprise Cities Demonstration Program ("Empowerment Zones Program") to create geographic zones within certain selected cities that would be eligible for special federal attention to alleviate pervasive conditions of

poverty and economic distress within the cities. The program is self- described as a strategy "to create jobs and business opportunities in [the]

most economically-distressed areas of inner cities' by providing tax incentives and social service funds within the zone to stimulate business creation and expansion and attain, over the long-term, revitalization of

the distressed community. The …

Slaves To Fashion: A Thirteenth Amendment Litigation Strategy To Abolish Sweatshops In The Garment Industry, Samantha C. Halem

San Diego Law Review

Viewed as a relic of a bygone era, modem legal teaching largely ignores the Thirteenth Amendment. Few constitutional law textbooks give it any more than a passing glance.' After all, slavery was abolished in the United States in 1863. While it is true that some scholars have suggested new applications for the Civil War Amendment legal practitioners have found few practical applications. This Article proposes a real world application of the Thirteenth Amendment to a current real world problem. Legal practitioners have under-utilized the Thirteenth Amendment. They should employ the Thirteenth Amendment as a valuable tool for fighting slavery and …

Legal Rules And Social Reform, Emily Sherwin

San Diego Law Review

Rules are designed to reduce error by prescribing actions that, in the run of cases, will produce better results than the subjects of rules would obtain if they judged for themselves what to do. At the same time, rules sometimes produce errors when applied to particular cases. If the sum of error under rules is less than the sum of error rules prevent, then the rule-making authority has reason to issue "serious" rules-rules to be followed in every case. Because rules are imperfect, however, the subjects of rules do not always have good reason to follow them. This means that …

The Tort That Refuses To Go Away: The Subtle Reemergence Of Public Disclosure Of Private Facts

San Diego Law Review

This Comment focuses instead on the subtle reemergence of the private facts tort in factual scenarios Warren and Brandeis most likely could not foresee one hundred years ago. Part II of the Comment briefly describes the development of the private facts tort. Part III examines the inevitable conflict between the private facts tort and the First Amendment, and common law attempts to reconcile that conflict through variations of the "newsworthiness" defense. Part IV focuses on the resurrection of the private facts tort in recent case law, due to judicial limitation of the newsworthiness defense. Finally, after examining the problems associated …

Strict Liability For Abnormally Dangerous Activity: The Negligence Barrier, Gerald W. Boston

San Diego Law Review

My main thesis is that the doctrine of strict liability for abnormally dangerous activity (which I sometimes refer to by the acronym SLADA), memorialized in sections 519 and 520 of the Restatement (Second) of Torts,' has evolved to the point of near extinction because courts have concluded that the negligence system functions effectively to deter the serious risks posed by the activities involved. The Restatement (Second) provides that strict liability is inapplicable when the high degree of risk can be eliminated by the exercise of reasonable care.2 The evidence demonstrates that courts are increasingly making precisely that finding, usually without …

The Rule In A Contribution Action Between Third-Party Insurers Wherein The Plaintiff Insurer Seeks Reimbursement Of Defense Costs From The Defendant Insurer After A Collusive Fraud On The Plaintiff Insurer Under California Law

San Diego Law Review

This Comment addresses five sub- issues, as follows:

1. Does or should an insurer have a duty to defend when it "knows" that the insured is involved in collusive fraud? 2. Assuming there is "substantial" but inconclusive evidence of collusive fraud, does an insurer who refuses to defend thereby commit a breach of duty? 3. In connection with a contribution action, are there any "gatekeeper" duties owed by the payer to the non-payer which must be satisfied? 4. Given that the non-payer denied coverage on the basis of collusive fraud, what must be proven in a subsequent contribution action? 5. …

Birbrower, Montalbano, Condon & Frank, P.C. V. Superior Court: A Defensible Outcome, But A Striking Example Of The Need To Reform Unauthorized Practice Of Law Provisions

San Diego Law Review

The comments of then-Governor Pete Wilson perhaps echo a commonly held, nationwide belief: the State Bar of California is arrogant.2 If the State Bar of California has been perceived historically as aloof, then the Supreme Court of California created a public relations nightmare-indeed, threw gasoline on a simmering inferno-with its recent opinion in the case of Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court ("Birbrower If').' In Birbrower II, the court held that a New York law firm was unable to collect the majority of its fees,

which exceeded one million dollars, because some of its attorneys- none of …

The Devil Made Me Do It: Replacing Corporate Directors' Veil Of Secrecy With The Mantle Of Stewardship, Constance E. Bagley, Karen L. Page

San Diego Law Review

This Article argues that the nature of the corporate form coupled with an exclusive focus on shareholder value leads to economically and socially inefficient results. The "profit maximization" view of directors' duties ignores the historical reasons why corporations were given special privileges, such as limited liability, by the state. This narrow view should be replaced with a doctrine of stewardship that imposes a more comprehensive view of the corporation's and directors' responsibility to manage the vast resources held in corporate form. This broader view is consistent not only with the values of a free market economy, but also with modem …

An Army Of Lovers?: Queering The Ministry Of Defense Report Of The Homosexual Policy Assessment Team, Bruce Carolan

Articles

Certain queer theorists argue that gay men and lesbians are banned from military service in certain countries not due to a fear of otherness. Instead, they are prohibited from serving precisely because of a fear that the opposite might be true -- that introducing openly gay people into a 'homosocial' environment might destabilize accepted notions of sexuality among members of the service who presently constitute themselves as heterosexual. This article explores that idea in the context of the Report of the Homosexual Policy Assessment Team established to defend exclusion of openly gay people from military service in the United Kingdom. …

The Social Implications Of The Use Of Stored Tissue Samples: Context, Control, And Community, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Social Implications Of Genetic Testing, Karen H. Rothenberg

Faculty Scholarship

This paper examines the social implications of predictive genetic testing and its impact on the insurance industry. Although the Human Genome Project has the potential to improve the health of our nation, it also may serve as a means of highlighting genetic differences among individuals and ethnic groups. Thus, if we are to reach the full promise of the Project, society must address the public's fears of genetic discrimination in insurance and employment context. Following an analysis of state and federal legislation on genetic privacy and discrimination, the paper concludes with a challenge to the insurance industry to work with …

Congressional Accountability And Denial: Speech Or Debate Clause And Conflict Of Interest Challenges To Unionization Of Congressional Employees , James J. Brudney

Faculty Scholarship

In 1995, Congress passed the Congressional Accountability Act, which applied federal workplace and anti-discrimination laws to Congress. Under the terms of the Act, Congress can prevent legislative staff from unionizing if the presence of organized employees would raise constitutional problems or present a conflict of interest. In this Article, Professor Brudney argues that these constitutional conflicts and issues do not pose sufficient concern to outweigh the workplace rights of congressional staff. Rather, he maintains that Congress, should either fulfill its obligations under the Act and allow legislative staff to unionize, or else enact a statute and explain the need for …

Justice Without Justices, John O. Mcginnis

Articles

No abstract provided.

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

Articles

No abstract provided.

Farewell Madison Avenue, Marci A. Hamilton

Articles

No abstract provided.