Law Commons^™

Politics, Gay Rights, And The Light At The End Of The Rainbow, Mary Lafrance

Scholarly Works

Legal scholars and practitioners concerned about the future of the law rather than merely its present know that successful strategies for advancing the law require not only a facility with the nuts and bolts of legal analysis but a sense of history and an awareness of the ways in which law is shaped by politics, public opinion, cultural norms, and moral and political philosophy.

Challenging those laws that discriminate on the basis of sexual orientation offers one of the most active and exciting undertakings for modern civil rights advocates. The losses are frustrating but the victories are exhilarating. The long-term …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 2000 and 2001.

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 2000 and 2001.

Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight

Scholarly Works

How can the body of law which protects the federal constitutional jury trial right be reconciled with a body of arbitration law which often states such propositions as (1) arbitration is favored; (2) arbitration clauses may be upheld absent a showing of voluntary, knowing, or intentional consent; (3) the party opposing arbitration bears the burden of proof; (4) arbitration can sometimes be imposed using unsigned envelope "stuffers," handbooks, and warranties; and (5) ambiguous contracts should be construed broadly to support arbitration? To be valid, in most courts the waiver and whether it was actually state arbitration clauses need not be …

Introduction: Employment Discrimination And The Problems Of Proof, John Valery White, Gregory Vincent

Scholarly Works

This is an introduction to articles presented at a symposium on the U.S. Supreme Court’s decision in Reeves v. Sanderson Plumbing Prods. Co. sponsored by the Louisiana Law Review. Presenting papers were five of the leading scholars on employment discrimination law: Professor Catherine J. Lanctot of the Villanova University Law School, Professor Michael Selmi of the George Washington Law School, Professor Linda Hamilton Krieger, University of California at Berkely School of Law, Professor Rebecca Hanner White of the University of Georgia Law School, and Professor Michael Zimmer of the Seton Hall University School of Law. Respondents were the authors and …

A Plea For Rationality And Decency: The Disparate Treatment Of Legal Writing Faculties As A Violation Of Both Equal Protection And Professional Ethics, Peter Brandon Bayer

Scholarly Works

This article builds on the work of others by demonstrating that as a matter of academic ethics, informed by cardinal legal standards of decency, the disparate treatment and adverse terms and conditions imposed on writing professors are not simply unfair but defy the ethical aspirations of American law schools. Specifically, as the construct for analysis, this article establishes and utilizes the proposition that the discordant status of legal writing professors fails to satisfy minimal professional ethics. As a model, this article shows that it is not even minimally rational under the Equal Protection Clause of the United States Constitution, our …

The Globalization Of Public Health: The First 100 Years Of International Health Diplomacy, David P. Fidler

Articles by Maurer Faculty

Global threats to public health in the 19th century sparked the development of international health diplomacy. Many international regimes on public health issues were created between the mid-19th and mid-20th centuries. The present article analyses the global risks in this field and the international legal responses to them between 1851 and 1951, and explores the lessons from the first century of international health diplomacy of relevance to contemporary efforts to deal with the globalization of public health.

Doctors, Hmos, Erisa, And The Public Interest After Pegram V. Herdrich, Jeffrey W. Stempel, Nadia Von Magdenko

Scholarly Works

The Employee Retirement Income Security Act of 1974 was enacted in the wake of highly publicized pension disasters in order to protect employee pension rights. Born as a piece of pro-worker legislation, it initially was criticized by business groups as a cause of bureaucratic arteriosclerosis that was worse than the disease of pension failures. Even worse, it prompted many employers to consider dispensing with pension plans altogether rather than struggle with the administrative and financial obligations of ERISA. Business, labor, and the public all complained about the law's complexity. It even became something of a national joke as regulators took …

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery "Reform", Jeffrey W. Stempel

Scholarly Works

One need not be a charter member of the Critical Legal Studies Movement (“CLS”) to see a few fundamental contradictions in litigation practice in the United States. A prominent philosophical tenet of the CLS movement is that law and society are gripped by a “fundamental contradiction” and simultaneously seek to embrace contradictory objectives. Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. One …

Their Own Preposessions: The Establishment Clause 1999-2000, Leslie C. Griffin

Scholarly Works

No abstract provided.

Procedural Uniformity And The Exagerated Role Of Rules, Thomas O. Main

Scholarly Works

No abstract provided.

The Prudent Prosecutor, Leslie C. Griffin

Scholarly Works

No abstract provided.

The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause …

Pushing Evolutionary Analysis Of Law Or Evolving Law: Design Without A Designer, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake

Articles by Maurer Faculty

The First Amendment is often analyzed using the metaphor of the marketplace of ideas. Making use of memetic analysis, this article suggests that ideas should not be treated as inert products that we choose but as living things that sometimes exert some influence over their environment. Some of the ideas are more adept at surviving than others, and the ones that survive will not necessarily be good for humans. To account for the ability of some memes to replicate dangerously, the First Amendment should be read to allow governments to punish a speaker who advocates or threatens physical injury (other …

The Epa's Nepa Duties And Ecosystem Services, Robert L. Fischman

Articles by Maurer Faculty

No abstract provided.

Endangered Species Information: Access And Control, Robert L. Fischman, Vicky J. Meretsky

Articles by Maurer Faculty

No abstract provided.

Indiana Law Journal Celebrates 75 Years, Colleen Kristl Pauwels

Articles by Maurer Faculty

No abstract provided.

Creativity And The Law, Alfred C. Aman

Articles by Maurer Faculty

No abstract provided.

Private Lawyers And The Public Interest, Patrick L. Baude

Articles by Maurer Faculty

No abstract provided.

Publicly Financed Judicial Elections: An Overview, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

No Ordinary Joe: Joseph R. Grodin And His Influence On California's Law Of The Workplace, Christopher David Ruiz Cameron

UC Law Journal

When it comes to California law of the workplace, no one has proved more influential than Joseph R. Grodin. Much of that influence is due to Grodin's wide-ranging experience in that field and his opportunity to analyze and comment on employment and labor law from different perspectives. In a career spanning more than five decades, Joe Grodin has served as a union lawyer, law professor, arbitrator, founding member of the Agricultural Labor Relations Board, Justice of the California Court of Appeal, Justice of the California Supreme Court, and law professor once more.

This Essay outlines the manner in which Joe …

Carter, Reagan, And Khomeini: Presidential Transitions And International Law, Nancy Amoury Combs

UC Law Journal

Although lame-duck Presidents frequently push through partisan domestic laws and policies during the waning hours of their administrations, they usually steer clear of significant or controversial international issues; or, at the least, they seek their successors' concurrence as to the course to pursue. This Article examines one of those very rare instances in which a lame-duck President was able and chose, during the final hours of his Administration, to bind the United States to significant international commitments without the concurrence of the President-elect. President Carter's final year in office was dominated by his efforts to secure the release of the …

Working Knowledge: Trade Secrets, Restrictive Covenants In Employment, And The Rise Of Corporate Intellectual Property, 1800-1920, Catherine L. Fisk

UC Law Journal

The invention of trade secret doctrine in the mid-nineteenth century enabled employers to enjoin revelation of secret information by current or former employees. At the same time, courts expanded the permissible uses of post-employment covenants not to compete so as to prevent dissemination of knowledge. These doctrinal developments thus defined the bounds of permissible entrepreneurship. Equally as significant, these doctrines both generated and reflected a profoundly new perspective on the nature and control of workplace knowledge.

This Article examines the origins and development of the law of trade secrets and restrictive covenants through study of cases and treatises and through …

Extinguishing Inheritance Rights: California Breaks New Ground In The Fight Against Elder Abuse But Fails To Build An Effective Foundation, Kymberleigh N. Korpus

UC Law Journal

This Note examines the elder abuse problem in the United States by describing: state responses to its "discovery" in the late 1970s as well as the debilitating reliance upon reporting; the currently available remedies and the hurdles to using those remedies; the ethical challenges to the states' primary abuse prevention tools, and the dramatic explosion in elder abuse that is already underway. Then, this Note describes American descent doctrines, and philosophies underlying exceptions to the doctrinal testamentary freedom and value-neutrality of intestate succession statutes. It proposes the Chinese behavior-based model of inheritance as an alternative inheritance scheme that, with its …

The Faragher And Ellerth Problem: Lower Courts' Confusion Regarding The Definition Of "Supervisor", Stephanie Ann Henning Blackman

Vanderbilt Law Review

Title VII of the Civil Rights Act of 196419 broadly prohibits discrimination in employment, including discrimination based upon sex. Title VII provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."'

The text of Title VII does not specifically mention either quid pro quo or hostile environment sexual harassment. The Equal Employment Opportunity Commission, however, has issued a series of Title VII …

Plea Bargaining In The Shadow Of Death, Joseph L. Hoffmann, Marcy L. Kahn, Steven W. Fisher

Articles by Maurer Faculty

No abstract provided.

The Private Attorney General In A Global Age: Public Interests In Private International Antitrust Litigation, Hannah Buxbaum

Articles by Maurer Faculty

Even in a climate of increased cooperation among regulatory authorities, jurisdictional conflict remains a prominent aspect of cross-border antitrust regulation. Much of this conflict is generated by private litigation - that is, lawsuits initiated under U.S. antitrust law by private attorneys general rather than by the government. This article examines two strands of jurisprudence relevant to the role of the private attorney general in cases with international aspects. First, it analyzes the cases, involving actions based on statutory violations of the antitrust laws, in which the extraterritorial reach of U.S. antitrust law has been delimited. It then turns to decisions …

Adventures In Comparative Legal Studies: Studying Singapore, Carole Silver

Articles by Maurer Faculty

No abstract provided.

Public Interest Litigation In A Comparative Context, Jayanth K. Krishnan

Articles by Maurer Faculty

No abstract provided.