Law Commons^™

The Evolution Of The "Patient": Shifts In Attitudes About Consent, Genetic Information, And Commercialization In Health Care, Janet L. Dolgin

Hofstra Law Review

This paper considers the importation of the notion of autonomous individuality into the world of healthcare during the last half century; it also explores the related transformation of the patient into a consumer. These developments have many beneficial dimensions. However, this paper focuses on these developments gone awry so that the result is some sort of excess. The paper describes three such excesses. It refers to the first as the elaboration of autonomous individuality and illustrates it with reference to the involution of the informed consent doctrine.The second excess is referred to as the perversion of autonomous individuality; this is …

Business Necessity And Hostile Work Environment: An Evolutionary Step Forward For Title Vii, Eric S. Tilton

Hofstra Law Review

No abstract provided.

Executive Power, The Commander In Chief, And The Militia Clause, Richard A. Epstein

Hofstra Law Review

No abstract provided.

Attractive Complexity: Tax Deregulation, The Check-The-Box Election, And The Future Of Tax Simplification, Steven A. Dean

Hofstra Law Review

Political failure has long been the scapegoat for the increasing complexity of the income tax. Over the last few decades, confusion over the meaning of the term simplification appears to have become a second important obstacle to creating simpler tax laws. Because some tax complexity is attractive to taxpayers, relying on taxpayer preferences to identify complexity and to guide simplification efforts has produced reforms and proposals that promise simplification but instead deliver pro-taxpayer deregulation that may cause more of society's resources to be devoted to paying, minimizing and collecting taxes rather than less. The check-the-box election, which provided taxpayers with …

Judicial Enforcement Of Arbitration Agreements: The Stay-Dismissal Dichotomy Of Faa Section 3, Angelina M. Petti

Hofstra Law Review

No abstract provided.

Respecting Intellectually Disabled Parents: A Call For Change In State Termination Of Parental Rights Statutes, Alexis C. Collentine

Hofstra Law Review

No abstract provided.

Leopold & Morel: A Story Of 'Free Trade' And 'Native Rights' In The Congo Free State, Padideh Ala'i

Contributions to Books

No abstract provided.

Reflections On Diversity, William Murray Tabb

Faculty Articles

No abstract provided.

The Confidentiality And Privacy Implications Of Functional Magnetic Resonance Imaging, Stacey A. Tovino

Faculty Articles

No abstract provided.

Tribes And Tribulations: Beyond Sovereign Immunity And Toward Reparation And Reconciliation For The Estelusti, Carla Pratt

Faculty Articles

This Article advocates a form of micro-reparations for a limited class of African Americans--the Estelusti (black Indians). The Article seeks reparations in the form of racial healing not only from the United States Government, but also from one particular participant in African American slavery--Native American Indian Tribes. The Article begins by defining the theory of micro-reparations and providing the historical foundation which serves as the factual predicate to the claim that black Indians have for reparation. This part of the article establishes how the rule of hypo-descent or the "one drop rule" has served historically and presently to exclude black …

Toward More Effective Judicial Implementation Of Treaty-Based Rights, John Quigley

Fordham International Law Journal

This Article argues that the approach to treaties taken early in the history of the Republic is more consistent with the intended meaning of the Supremacy Clause than the approach reflected in recent judicial practice.

Foreward- Symposium: Out With The Old, In With The New - Articles 2 And 2a Of The Uniform Commercial Code, Margit Livingston

College of Law Faculty

No abstract provided.

Post-Conflict Justice In Iraq: An Appraisal Of The Iraq Special Tribunal, M. Bassiouni

College of Law Faculty

No abstract provided.

Post-Conflict Justice In Iraq: An Appraisal Of The Iraq Special Tribunal, M. Bassiouni

College of Law Faculty

No abstract provided.

Pulling The Fig Leaf Off The Right Of Privacy: Sex And The Constitution, Donald Hermann

College of Law Faculty

No abstract provided.

The Rules Of Law Problem: Unconstitutional Class Actions And Options For Reform,, Mark Moller

College of Law Faculty

No abstract provided.

Book Review: Beyond Neutrality: Confronting The Crisis In Conflict Resolution, Nadja Alexander

Research Collection Yong Pung How School Of Law

No abstract provided.

A Colonial Reading Of Recent Jurisprudence: Sparrow, Delgamuukw And Haida Nation, Gordon Christie

All Faculty Publications

Throughout Canada's long colonial relationship with Aboriginal nations, the Crown and the judiciary have worked in tandem. Historically, executive and legislative arms of government developed and implemented dispossessive and oppressive colonial policies and legal regimes, while the courts consciously developed conceptual frameworks meant to justify the taking of lands and the denial of Aboriginal sovereignty. This essay explores judicial attempts to justify the taking of lands and the denial of Aboriginal sovereignty, with the focus on how doctrinal law has conceived the transition from a world in which collective understandings of Aboriginal nations define the nature of their land interests …

Symposium On Tax Avoidance After Canada Trustco And Mathew: Summary Of Proceedings, Benjamin Alarie, Sanjana Bhatia, David G. Duff

All Faculty Publications

On October 19, 2005, the Supreme Court of Canada released its much-anticipated decisions in The Queen v. Canada Trustco Mortgage Co. and Mathew v. The Queen, the first two cases from Canada's highest court addressing the general anti-avoidance rule (GAAR) in section 245 of the federal Income Tax Act. The Faculty of Law at the University of Toronto hosted a symposium on November 18, 2005, which brought together academics, practitioners, representatives of the Canada Revenue Agency, and Chief Justice Donald Bowman of the Tax Court of Canada to discuss the implications of the decisions. This article summarizes the formal presentations …

Horizontal Uniformity And Vertical Chaos: State Choice Of Law Clauses And Preemption Under The Federal Arbitration Act, Jennifer Trieshmann

Journal of Dispute Resolution

Although the goal of arbitration is speedy and efficient resolution of disputes, these goals may be frustrated by judicial interpretation of choice of law provisions in commercial agreements. There is uncertainty as to the law that a court will apply in deciding a motion to stay or otherwise interfere with an arbitration. There is further uncertainty surrounding whether the law governing arbitration is the Federal Arbitration Act (FAA), the arbitration law of the state where the arbitration is taking place, or that of the state mentioned in a choice of law clause. The federal courts have adopted conflicting standards so …

Resolving A Split: May Courts Order Consolidation Of Arbitration Proceedings Absent Express Agreement By The Parties, Jonathan R. Waldron

Journal of Dispute Resolution

In Illinois Farmers Insurance Co. v. Glass Service Co., 8 the Minnesota Supreme Court had the opportunity to revisit its 1973 decision in Grover-Dimond Associates v. American Arbitration Ass'n 9 in light of conflicting case law developed since that time.' 0 This Note will address the current split in state and federal courts, and suggest that the best way to resolve this issue is through state adoption of the RUAA.

Confidentiality In Mediation: Is It Encouraging Good Mediation Or Bad Conduct, Sarah Williams

Journal of Dispute Resolution

Mediation has long been used in the judicial system of the United States to offer an alternative to litigation which can save time and money. Not only have its cost-effective and time efficient attributes contributed to its use, but the judiciary and legislature have often encouraged its use in order to mitigate the number of cases in the court system. In some states, the legislature has enacted statutes to make mediation mandatory before certain adjudications will even take place. Furthermore, to encourage these mediations to settle, many legislatures and jurisdictions have enacted statutes to protect the confidentiality of the mediation. …

Title Page

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Ditslear

Vanderbilt Law Review

Federal statutes, like the lawmaking enterprise itself, are seldom models of efficiency. Whether through inevitable laxity or conscious choice, Congress when legislating leaves a fair number of gaps in the meaning of its complex regulatory schemes. In filling those gaps with case-specific interpretive responses, federal courts perform an important policymaking function.

Such policymaking has lately generated increased concerns about the politicization of the judiciary. Scholars using social science techniques have contributed to the image of courts as policymakers, by establishing that judges' political party affiliation and ideological orientation are at times significant predictors of voting behavior. Presidents and senators have …

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law Review

The boundaries of the criminal justice system are eroding. A vast amount of relatively innocuous behavior is now criminalized. The line between criminal penalties and administrative sanctions is dissolving, as criminal law relaxes its mens rea requirements and government bureaucracies aggressively pursue regulatory violations. Distinctions between criminal and civil forfeiture, contempt, and deportation proceedings have been vanishingly subtle for some time. Perhaps the most serious assault on the integrity of today's criminal justice system, however, is the increasing prominence of the "dangerousness criterion" as justification for confinement by the government. Governmental deprivations of liberty have usually been the province of …

“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas

Faculty Scholarship

For the first time in the history of the United States, Congress met in a special emergency session on Sunday, March 20, to pass legislation aimed at the medical care of one patient — Terri Schiavo. President George W. Bush encouraged the legislation and flew back to Washington, D.C., from his vacation in Crawford, Texas, so that he could be on hand to sign it immediately. In a statement issued three days earlier, he said: “The case of Terri Schiavo raises complex issues. . . . Those who live at the mercy of others deserve our special care and concern. …

The Scope And Jurisprudence Of The Investment Management Regulation, Tamar Frankel

Faculty Scholarship

This Essay reviews three periods of investment company regulation by the Securities and Exchange Commission. It focuses on the period of 1975 to 2000 in which the Commission granted exemptions on conditions, thus deregulating and reregulating, case by case and finally codifying the exemptions in an exemptive rule. The Essay analyses this form of rule-making and compares it to prosecution, settlements, and initial rule-making that typifies the recent years. The Essay concludes that the common law method of legislation, especially when it involves a "bargain" between the regulators and law-abiding regulated institutions who wish to innovate, is likely to lead …

Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer, Craig Allen Nard

Faculty Scholarship

The doctrine of equivalents (DOE) allows courts to expand the scope of patent rights granted by the Patent Office. The doctrine has been justified on fairness grounds, but it lacks a convincing economic justification. The standard economic justification holds that certain frictions block patent applicants from literally claiming appropriately broad rights, and thus, the DOE is available at trial to expand patent scope and overcome these frictions. The friction theory suffers from three main weaknesses. First, the theory is implausible on empirical grounds. Frictions such as limits of language, mistake, and unforeseeability are missing from the leading cases. Second, there …