Law Commons^™

The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell

Faculty Law Review Articles

This article calls for consideration of the relationship of strong social norms to the tort reform debate. Additionally, it inquires into the concepts of measuring and comparing interests and the judgments of proportionality inherent in traditional legal doctrines, scrutinizing in particular the methodology of comparisons in tort reform.

Part II of the article examines the need to identify, measure, and compare the interests at stake in any legal contest with rigorous consistency.

Part III explores the natural hierarchy among legal norms and the weight accorded various types of interests that deserve legal protection.

Part IV considers the system of measurement …

Got Wheels? Article 2a, Standardized Rental Car Terms, Rational Inaction, And Unilateral Private Ordering, Irma S. Russell

Faculty Law Review Articles

This article considers the system of unilateral private ordering by form contracts: the presumptions of a free market and free bargaining. It questions whether the system of constrained judicial oversight that serves to insulate bargaining from governmental control should extend to standardized consumer contracts that emphatically dispense with bilateral ordering. It also questions whether the unilateral private ordering presented by standardized contracts effects a cost savings for society, a construct with apparently universal acceptance today. This article considers the application of Article 2A to standard form contracts in the most common consumer leasing transaction -- renting a car.

Part II …

Forfeiture By Wrongdoing: A Panacea For Victimless Domestic Violence Prosecutions, Andrew King-Ries

Faculty Law Review Articles

In this article the author explores whether the rule of forfeiture by wrongdoing is the post-Crawford panacea for victimless domestic violence prosecutions. Section II briefly discusses the Crawford decision and the revitalization of the Confrontation Clause. The author highlights Crawford's recognition of the rule of forfeiture by wrongdoing and the traditional concept of forfeiture by wrongdoing. Section III presents difficulties with the rule of forfeiture by wrongdoing in the domestic violence context. In Section IV the author proposes solutions to these difficulties along with the additional requirements that are necessary when applying the rule in domestic violence cases …

Which Side Are You On? Unionization In Social Service Nonprofits, Eduardo R.C. Capulong

Faculty Law Review Articles

This article examines nonprofit union organizing from an institutional perspective. Specifically, the author asks a basic question: do unions belong in social service nonprofits or are such efforts somehow misguided? To answer the question, the article examines the dual institutional role social service nonprofits play and explores strategies to harmonize their conflicting tendencies. The author argues that the industry-wide unionization of social service nonprofits is the best means by which to actualize the nonprofit ethos and counteract these organizations' tendency to lower wages and working conditions, thereby facilitating cuts in social spending.

Part I discusses the factors that have led …

The Legal Meaning Of Commerce In The Commerce Clause, Robert G. Natelson

Faculty Law Review Articles

In this article the author inquires into the meaning of the legal term "commerce" at the the time the Constitution was written, debated, and ratified. The article provides additional support for the conclusion that, for reasons of policy and politics, the founding generation inserted this conceptual and legal boundary into the Constitution and the clear inference from these findings collectively is that the Commerce Clause was designed to give Congress jurisdiction over the law merchant insofar as it pertained to interjurisdictional activities, which was the same jurisdiction that pre-Revolution American pamphleteers had conceded to Parliament.

Part I examines contending definitions …

Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson

Faculty Law Review Articles

This article explores the fiduciary law of the founding fathers to determine whether it was part of the constitutional design for the Judiciary to review special interest appropriations, and, if so, how the courts might proceed. The author’s findings suggest that, at least from the standpoint of the original understanding of the Constitution, prior judicial deference to the Legislature has been excessive and that there are solid constitutional grounds in arguing for a more searching standard of review.

The Contractarian Model Of Arbitration And Its Implications For Judicial Review Of Arbitral Awards, Paul F. Kirgis

Faculty Law Review Articles

Those who favor the current system of virtually unlimited and unreviewable arbitration can forestall change—and even avoid engaging in a sustained policy discussion—by falling back on those defenses. While it is not possible to resolve the policy issues finally, it is possible to assess whether the principle of party autonomy, coupled with applicable legal doctrine, justifies the degree of deference courts have adopted. That is what I attempt in this Article. I argue that, at least in certain classes of cases, the principle of party autonomy requires greater judicial scrutiny of arbitral awards. I argue further that this result is …