Law Commons^™

Deference And Disability Discrimination, Rebecca H. White

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In 1999, the question of deference to the EEOC grabbed the spotlight. It surfaced in a case that arose under the Americans with Disabilities Act of 1990 (the "ADA"), a relatively new, and sweeping, anti-discrimination law that prohibits workplace discrimination against qualified individuals with a disability. A difficult substantive question was presented: Is the determination of whether one has a disability within the meaning of the ADA to be made with or without regard to mitigating measures? Instinctively, either a "yes" or a "no" answer seems problematic. On the one hand, defining disability without regard to the corrective effects of …

Rothman, Hein, And Aall: A Short History Of A Long-Standing Publishing Relationship, April Schwartz

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No abstract provided.

Georgia's Proposed Dynasty Trust: Giving The Dead Too Much Control?, Verner F. Chaffin

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Georgia should resist the urge to join the parade of states that have overturned the Rule Against Perpetuities. We do not neet the dynasty trust in Georgia. The repeal of perpetuities laws ignores the reasons for the Rule Against Perpetuities and uncritically assumes that preserving family wealth in perpetuity is a desirable social goal. The Rule is still needed to prevent persons long removed from the current scene from tying up wealth without restriction and from unduly influencing the behavior of those living in the present. For background purposes, this Article reviews the legislative history of Georgia's Rule Against Perpetuities …

Deconstructing The Debate Over State Taxation Of Electronic Commerce, Walter Hellerstein

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Elsewhere on these pages, the distinguished economist Charles McLure begins his contribution to the debate over taxation of electronic commerce by observing that “America is focusing on the wrong issues in debating the taxation of electronic commerce ....” He proceeds to provide a fundamental critique of the states' existing sales tax regimes and he lays out a roadmap for radical reform of the system that would, in the course of curing the basic defects in the existing state sales tax structure, incidentally resolve many of the issues that currently dominate the debate over taxing electronic commerce. I do not disagree …

The Personal Side Of A Deanship, David E. Shipley

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So why have I been deaning for over 10 years? I do, in fact, enjoy most aspects of the job including the many challenges, the fact that there is nothing routine about the work, and the many public aspects of the position such as receptions, bar meetings, tailgate parties, law review banquets, and bar luncheons. I enjoy students. We would not have these wonderful jobs in law teaching without them. I like faculty and still think of myself as a law professor first. It is fun to do alumni relations and developmental work, and I would love to have more …

Spotting Money Launderers: A Better Way To Fight Organized Crime?, Diane Marie Amann

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Money laundering investigations have been much in the news of late. There have been stories that Radil Salinas de Gortari laundered kickbacks from drug traffickers while his brother was President of Mexico. That Ferdinand Marcos stashed nearly half a billion dollars in Swiss banks while he ruled the Philippines. That two of Mexico's largest banks have pleaded guilty to laundering charges stemming from a controversial U.S. sting operation. That the former prime minister of Ukraine pleaded guilty to Swiss charges that he laundered $9 million in stolen funds, even as he faced U.S. charges of laundering $114 million. And, of …

Harmonic Convergence? Constitutional Criminal Procedure In An International Context, Diane Marie Amann

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Throughout the world, a trend toward a shared - a constitutional - criminal procedure may be detected. It is evident in common-law, civil-law, and mixed systems: individual states like China adopt laws promising once-alien concepts like a presumption of innocence, even as supranational bodies like the International Tribunal for the former Yugoslavia debate how to adapt certain norms to a hybrid structure. Some have suggested that such developments may herald a harmonic convergence of criminal procedure rules. This Article examines the likelihood of such a convergence. It establishes as a keynote around which harmony may develop the model of constitutional …

The Bankruptcy Trust As A Legal Person, Thomas E. Plank

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The purpose of this article is to show how the Bankruptcy Code authorizes the creation of the bankruptcy trust as a legal person. The filing of a petition under the Bankruptcy Code creates an "estate" consisting of enumerated property interests. The Code also provides for the appointment of a trustee-a separate bankruptcy trustee or, in chapter 11 or chapter 12 cases, the debtor in possession-with broad powers to act as the representative of the estate. The Code does not, however, expressly define the status of the estate as a legal entity. Although the Code occasionally speaks of the estate as …

"Available State Remedies" And The Fourteenth Amendment: Comments On Florida Prepaid V. College Savings Bank, Michael L. Wells

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In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, decided during the Supreme Court's October 1998 Term, the specific point at issue was the scope of Congress's authority under Section 5 of the Fourteenth Amendment to impose liability for damages on state governments. In the Patent Remedy Act, Congress had abrogated the states' sovereign immunity from claims of patent infringement. College Savings Bank argued for the validity of the statute on the grounds that patents are property; that patent infringements are deprivations of property; and that the statute simply and appropriately provides a remedy for deprivations of …

A Reply To Professor Tobias, Peter A. Appel

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In his response to my article, Intervention in Public Law Litigation: The Environmental Paradigm, Professor Carl Tobias finds much to commend and much to criticize, and he offers a “friendly critique” of my article. I thank Professor Tobias for taking the time to respond to my article, and I hope that this response furthers the dialogue on this important subject.

Suing States For Money: Constitutional Remedies After Alden And Florida Prepaid, Michael Wells

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On June 23, 1999, the Supreme Court handed down three noteworthy decisions bearing on the law of constitutional remedies. Alden v. Maine struck down an attempt by Congress, acting under its Article I powers, to subject states to suits in state court on federal statutory grounds. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank curbed Congress' power under Section 5 of the Fourteenth Amendment to authorize suits against state governments on constitutional grounds, reasoning that a case cannot be made for the federal cause of action unless state law remedies are inadequate. A companion case, College Savings Bank …

The False Claims Act And The English Eradication Of Qui Tam Legislation, J. Randy Beck

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Congress amended the False Claims Act in 1986 to encourage qui tam enforcement of the statute, which penalizes submission of false claims to the federal government. A qui tam statute authorizes a private citizen "informer" to file suit on behalf of the government for collection of a statutory forfeiture. A successful informer receives a share of the recovery. Qui tam enforcement came from England, where it served for centuries as the principal means of enforcing a wide range of statutes. England moved away from qui tam enforcement in the 1800s and abolished it altogether in 1951. In this Article, Professor …

Juristic Giants: A Georgia Study In Reputation, R. Perry Sentell Jr.

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In 1990, Judge Richard Posner published CARDOZO: A STUDY IN REPUTATION. A deceptively small volume (only 156 pages), the book purported to delineate and dissect the facets of circumstance, achievement, and character accounting for Benjamin Cardozo's reputation for "greatness." Treating such indicia (both tangible and intangible) as Cardozo's "person," "philosophy," "technique," and "contributions," Posner also sought a handle for "measuring the magnitude" of reputation itself. He hit, of course, upon the modern mechanical mainstay of computerization: a finger-tip presentation of the frequency with which Cardozo's name appears in other judicial opinions.

Intervention In Public Law Litigation: The Environmental Paradigm, Peter A. Appel

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Litigation which Chayes labeled “public law litigation” grew especially quickly in the decade immediately before Chayes wrote his article. This growth was due, in no small part, to the 1966 amendments to the Federal Rules of Civil Procedure. These amendments introduced a more transactional approach to litigation and made the rules concerning party structure more flexible. In particular, the amendments modified Rule 19, which governs joinder of nonparties by the parties to the suit; Rule 23, which governs class action lawsuits; and Rule 24, which governs intervention by nonparties into ongoing litigation. Using the jurisprudence that has developed concerning intervention …

Another Brick In The Wall: An Empirical Look At Georgia Tort Litigation In The 1990s, Thomas A. Eaton, Susette M. Talarico, Richard E. Dunn

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It has been four years since we prepared our first profile of tort litigation in Georgia.

It is against this backdrop that we undertook to update and expand upon our original research. We have updated our study by collecting data from tort cases filed in the superior courts of Bibb, Gwinnett, Irwin, and Oconee counties between 1994 and 1997. Thus, for these four counties we now have data regarding the filing and disposition of tort cases for an eight-year period. We also have collected data from tort cases filed in Cobb and Fulton County superior courts between 1994 and 1997. …

Surviving The Politics Of Judging - National Association Of Administrative Law Judges Luncheon Address - September 13, 1999, Penny White

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No abstract provided.

Tortious Interference With Business Relations: "The Other White Meat" Of Employment Law, Alex B. Long

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No abstract provided.

The Evolving Police Power: Some Observations For A New Century, Glenn Harlan Reynolds

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A review of state and federal courts decisions on the scope of state police powers suggests that the shift from the more restrictive sic utere principle to the more open salus populi principle may be reversing, with courts -- at least in cases involving sex and marriage -- taking a much more skeptical view of government objectives and justifications.

Entrapment When The Spoken Word Is The Crime, James F. Ponsoldt, Stephen Marsh

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The task of this Article is to assess the competing approaches that circuit courts have taken in defining the predisposition element in entrapment cases. It then attempts to try to reconcile them, not only with Jacobson v. United States, but also with policy concerns underlying the rest of the Supreme Court's entrapment jurisprudence, particularly in light of the increased politicization of federal criminal law through investigations of public officials' conduct by independent counsel. This Article will first frame the central issue, the supplementary mens rea requirement arising in entrapment cases. Part II then will review the common law development …

The Autumn Of The Patriarch: The Pinochet Extradition Debacle And Beyond- Human Rights Clauses Compared To Traditional Derivative Protections Such As Double Criminality, Christopher L. Blakesley

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This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state's interests, …

Critical Race Theory And Autobiography: Can A Popular Genre Make A Serious Academic Contribution?, Sylvia R. Lazos

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This Essay reviews “Notes of a Racial Caste Baby, Colorblindness and the End of Affirmative Action” by Bryan K. Fair, “How Did You Get to Be a Mexican? a White/Brown Man's Search for Identity” by Kevin R. Johnson, and “To be an American: Cultural Pluralism and the Rhetoric of Assimilation” by Bill Ong Hing. This Essay examines the potential contributions each book makes to legal scholarship and the popular press. The Essay first describes how each author uses the autobiographical narrative and what these narratives accomplish. The Essay examines each book's legal agenda and assesses how well each author achieves …

The Salience Of Race, Deborah W. Post

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No abstract provided.

Who Shall We Admit To Our Club?, Lawrence Raful

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No abstract provided.

Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman

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No abstract provided.

Weighing The Domestic Violence Factor In Custody Cases: Tipping The Scales In Favor Of Protecting Victims And Their Children, Kim Susser

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In 1996, the New York State Legislature attempted to afford additional protection to domestic violence victims and their children involved in custody disputes by amending New York's Domestic Relations Law and the Family Court Act to mandate consideration of domestic violence when determining the best interests of the child in custody and visitation cases. Four years later, it is evident that the amendment failed to change the behavior of the courts or overcome the entrenched attitudes of many judges, attorneys and forensic evaluators regarding domestic violence.

The first Part of this Article contains a brief overview of the case law …

Seeing Through "The Glass Ceiling": A Response To Professor Angel, Dan Subotnik

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No abstract provided.

Law, Ethics, And Religion In The Public Square: Principles Of Restraint And Withdrawal, Samuel J. Levine

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In recent years, scholars have begun to recognize and discuss the profound questions that arise in attempting to determine the place of religion in the law and the legal profession. This discussion has emerged on at least two separate yet related levels. On one level, scholars have debated the place of religion in various segments of the public sphere, including law and politics. On a second level, lawyers have expressed the aim to place their professional values and obligations in the context of their overriding religious obligations. This article explores, from both an ethical and jurisprudential perspective, the question of …

Teaching Interdisciplinarily: Law And Literature As Cultural Critique, Deborah Waire Post

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No abstract provided.

Teshuva: A Look At Repentance, Forgiveness And Atonement In Jewish Law And Philosophy And American Legal Thought, Samuel J. Levine

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Professor Levine examines the atonement model and its relevance to American law. He outlines and explains the necessary steps by the wrongdoer for atonement: repentance, apology, reparation and penance. The wronged party then has the obligation of reconciliation for the process to be complete. Despite the prominent position it has held for millennia in religious thinking, the atonement model is relatively new to American legal theory. Professor Stephen Garvey's attempt to offer a systematic depiction and analysis of the process of atonement and its possible relevance to American law appears to represent the most extensive effort to date. Any application …

Due Process And Fundamental Rights, Martin A. Schwartz

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No abstract provided.