Law Commons^™

From The War On Poverty To Pro Bono: Access To Justice Remains Elusive For Too Many, Including Our Veterans, Patricia E. Roberts

Faculty Articles

No abstract provided.

For A Feminist Considering Surrogacy, Is Compensation Really The Key Question?, Julie Shapiro

Faculty Articles

Feminists have long been engaged in the debates over surrogacy. During the past thirty years, thousands of women throughout the world have served as surrogate mothers. The experience of these women has been studied by academics in law and in the social sciences. It is apparent that if properly conducted, surrogacy can be a rewarding experience for women and hence should not be objectionable to feminists. Improperly conducted, however, surrogacy can be a form of exploitation. Compensation is not the distinguishing factor. In this essay I offer two changes to law that would improve the surrogate's experience of surrogacy. First, …

Freedom Of Conscience As Religious And Moral Freedom, Michael J. Perry

Faculty Articles

In another essay being published contemporaneously with this one, I have explained that as the concept "human right" is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration's wake, a right is a human right if the rationale for establishing and protecting the right-for example, as a treaty-based right-is, in part, that conduct that violates the right violates the imperative, articulated in Article i of the Universal Declaration, to "act towards all human beings in a spirit of brotherhood." Each of the human rights …

Selective Contracting In Prescription Drugs: The Benefits Of Pharmacy Networks, Joanna Shepherd

Faculty Articles

Selective contracting in health care involves contractual arrangements among insurers and health care providers that give covered individuals a financial incentive to obtain health care from a limited panel of providers. Although selective contracting has been an important strategy of health insurance plans for decades, it has only recently expanded to prescription drug coverage. Drug plans now create pharmacy networks that channel customers to in-network pharmacies. Pharmacies compete to be part of the networks by offering discounts on the drugs they sell to covered customers and drug plans. Although networks can lower prescription drug costs for drug plans and consumers, …

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Faculty Articles

Japanese Prime Minister Shinzo Abe, the highest political leader in Japan, shook his head in disbelief. His tenure as Prime Minister had been tense, partly due to the ongoing question of a replacement airfield for the U.S. Marines in Futenma. A predecessor, Yukio Hatoyama, also suffered political fallout stemming from his reversal of a public promise to find a replacement location for the U.S. Marine Corps Air Station. Prior to the Hatoyama administration, the Japanese government had selected a new location for the Marine Air Station, a remote area far removed from the busy city of Okinawa in Henoko. Moving …

Data Protection In The European Union: A Closer Look At The Current Patchwork Of Data Protection Laws And The Proposed Reform That Could Replace Them All, Christina Glon

Faculty Articles

Laws protecting a European's right to control the flow of their own personal data (also known as "data privacy") date back as early as 1950. In the 65 years since the Council of Europe declared that every person has the fundamental "right to respect for his private and family life, his home and his correspondence," a patchwork of conventions, directives, treaties and communications have been created to ensure the ongoing protection of this right. However, in recent years, this patchwork approach has been unable to keep up with the pace of technology and has created confusion and concern for the …

A Prequel To Law And Revolution: A Long Lost Manuscript Of Harold J. Berman Comes To Light, John Witte Jr., Christopher J. Manzer

Faculty Articles

The late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumental Law and Revolution series on the Western legal tradition. Berman wrote a short book, Law and Language, in the early 1960s, but it was not published until 2013. In this early text, he adumbrated many of the main themes of his later work, including Law and Revolution. He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the …

Unintended Consequences: The Posse Comitatus Act In The Modern Era, Mark P. Nevitt

Faculty Articles

America was born in revolution. Outraged at numerous abuses by the British crown—to include the conduct of British soldiers in the colonists’ daily lives—Americans declared their independence, creating a new republic with deep suspicions of a standing army. These suspicions were intensely debated at the time of the nation’s formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. This did not occur until after the Civil War when Southern congressmen successfully co-opted the framers’ earlier concerns of a standing army and passed a criminal statute—the 1878 Posse …

The Cure For Young Prosecutors' Syndrome, Ronald F. Wright, Kay L. Levine

Faculty Articles

Although legal scholars treat prosecutors like interchangeable parts, we argue—based on interviews and surveys of over 200 state prosecutors in eight offices—that scholars should be alert to the differences among them, because new prosecutors experience their professional role differently than their veteran colleagues do. This divergence happens because, as new prosecutors gain experience, their professional identities shift—they become more balanced over time. This Article explores the prosecutor’s professional transformation and the possible catalysts for that change.

When experienced prosecutors describe their career trajectories, they regret the highly adversarial posture they adopted earlier in their careers. While the constant quest for …

Not Without Political Power: Gays And Lesbians, Equal Protection And The Suspect Class Doctrine, Darren L. Hutchinson

Faculty Articles

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

Uncovering The Silent Victims Of The American Medical Liability System, Joanna Shepherd

Faculty Articles

A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases.

I conducted the first national survey of attorneys to explore medical malpractice victims' access to the civil justice system. The results from the survey indicate that the economic reality of litigation …

Against The Profit Motive: The Salary Revolution In American Government, 1780–1940 (Book Review), Michael S. Ariens

Faculty Articles

In Against the Profit Motive, Nicholas R. Parrillo expertly explains how and why state and federal governments moved from paying their employees fees to paying them salaries. The book offers insights into the history of government finance and administrative law, shifting dramatically in time, subject matter, and geography. The book begins with a helpful fifty-page introductory summary and then is divided into two parts, each of which considers a type of activity that generated fees for government officers: facilitative payments and bounties. Further, Against the Profit Motive illustrates, in the disparate areas of criminal law enforcement, tax collection, and naval …

The Invention Of Murder: How The Victorians Revelled In Death And Detection And Created Modern Crime (Book Review), Michael S. Ariens

Faculty Articles

The Invention of Murder, by Judith Flanders, is an extraordinary achievement—an exhaustively researched history of 19th-century Great Britain written with verve. Flanders uses the conceit of murder to immerse the reader in 19th-century legal, cultural, and social history. Her depth of knowledge appears to encompass everything related to every murder during this place and time. As a legal history, the book explains a number of developments in English law. As a cultural history, the book discusses the importance in the early 19th century of broadsides, penny-bloods, illegal penny-gaffs, licensed plays, and newspapers; all centered around murder and mayhem. As a …

Lost And Found: David Hoffman And The History Of American Legal Ethics, Michael S. Ariens

Faculty Articles

David Hoffman was a successful Baltimore lawyer who wrote the first study of American

law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A …

A Death At Crooked Creek: The Case Of The Cowboy, The Cigarmaker, And The Love Letter, By Marianne Wesson (Book Review), Michael S. Ariens

Faculty Articles

Marianne Wesson’s A Death at Crooked Creek tells the story of one of the most intriguing mysteries in American legal history. For evidence teachers, and possibly even law students, Mutual Life Ins. Co. v. Hillmon is a classic nineteenth century mystery story. The case raises the question: Was the deceased John W. Hillmon, who had recently taken out the extraordinary sum of $25,000 in life insurance, or was it Frederick Adolph Walters, an itinerant who had left Iowa a year earlier?

In addition to teaching at the University of Colorado School of Law, Wesson is the author of three mystery …

The Agony Of Modern Legal Ethics, 1970–1985, Michael S. Ariens

Faculty Articles

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

Punitive Damages, Chinese Tort Law, And The American Experience, Vincent R. Johnson

Faculty Articles

In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that “(w)hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.” As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more …

Minimizing The Costs Of Patent Trolling, Vincent R. Johnson

Faculty Articles

Patent trolling is a serious legal problem. In addressing patent trolling, disclosure requirements and periodic reporting standards will be critical to minimizing the costs of this controversial practice.

Patent trolling, at its most problematic, generally refers to patent infringement allegations made by non-practicing entities (NPEs) which produce essentially no products or services except in connection with the buying and selling of patent rights. The targets of these patent “trolls” often lack basic information that is relevant to their evaluation of the claims against them, and policymakers know too little about specialized patent assertion entities and their impact on innovation and …

Father, Son, And Constitution: How Justice Tom Clark And Attorney General Ramsey Clark Shaped American Democracy, By Alexander Wohl (Book Review), Vincent R. Johnson

Faculty Articles

In Father, Son, and Constitution, Alexander Wohl brings to life two major figures of American law: Tom C. Clark and his son, Ramsey Clark. The story focuses primarily on the middle third of the twentieth century and the many heated constitutional challenges that arose during that era.

With an engaging literary style, Wohl perceptively examines not merely the lives and careers of Tom and Ramsey Clark, but the key roles they played in the issues of their day. The story proceeds from Pearl Harbor and World War II, to the Cold War, to desegregation, to the problems that beset President …

King Tut And Tahrir Square: The Egyptian Revolution Of 2011 And The Advantage Of Viewing Cultural Heritage Destruction Through A Right To Culture Lens, Zoe Niesel

Faculty Articles

No abstract provided.

Canon 1095 And The Dignitas Connubii: The Role Of Consent, Incapacity, And Psychic Anomalies In Cases Of Matrimonial Nullity, Roberto Rosas

Faculty Articles

This Article will focus on the following points: (1) the essential elements of marriage; (2) the basic principle of matrimonial consent; (3) the nature of consent; (4) acts through which consent is formed; (5) matrimonial nullity in Canon Law; (6) Canon Law and the Dignitas Connubil (Dignitas); and (7) recent jurisprudence concerning matrimonial nullity. It aims to shed light and clarify paragraphs 2 and 3 of Canon 1095 of the Code by making clear how the causes of defect of discretion of judgment and the inability to assume the essential obligations due to some sort of psychic disorder or anomaly …

Tocqueville's Nightmare: The Administrative State Emerges In America, 1900-1940 (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

The Law Of The Church In The Nullity Of Marriage Due To Causes Of Psychic Nature, Roberto Rosas

Faculty Articles

Introduction. - I. The principles of marriage, matrimonial consent and nullity of marriage in Canon Law. - II. The ordinary process of a declaration of nullity of marriage. The enhancement to the Code of Canon Law by the Instruction Dignitas connubii. - 1. Summary of the principal functions of the Dignitas connubii. - 2. Connections of Dignitas connubii to can. 1095 of the Code. - Ill. Recent Rotal Jurisprudence and the Dignitas connubii. - 1. Doctrine and case law. - a. Grave defect of discretion of judgment. - b. Incapacity to assume the essential obligations of marriage. - 2. Recent …

Escaping Liability Via Forum Non Conveniens: Conocophillips's Oil Spill In China, Chenglin Liu

Faculty Articles

In 2011, a year after British Petroleum (BP) 's oil spill in the Gulf of Mexico, ConocoPhillips's subsidiary in China caused a massive oil spill in the Bohai Sea. A group of fishermen suffered severe property damage as a result of the oil spill. After a failed attempt to have their complaint heard in a Chinese court, the fishermen sued ConocoPhillips in the United States District Court in Houston, Texas. It is very likely that the Houston District Court will deem the Chinese courts the more appropriate forum for this case and grant ConocoPhillips's motion for forum non conveniens dismissal. …

Collateral Damage: Protecting Cultural Heritage In Crimea And Eastern Ukraine, Zoe Niesel

Faculty Articles

Since the early spring of 2014, the world has watched Russia utilize military forces to invade and annex territory belonging to Ukraine. These actions are, unsurprisingly, raising concerns in Eastern Europe over the prospect of armed conflict in the region, the political consequences of Russian annexation of Ukrainian territory, and the effect of this conflict on ordinary civilians. But there is another potential cost associated with Russia's actions that should not be overlooked - the loss of Ukrainian cultural heritage. History is replete with examples of the destruction of cultural heritage during periods of instability, from Napoleon's systematic looting of …

The Possibility Of Private Rights And Duties, Adam J. Macleod

Faculty Articles

Is it possible for us to know what we owe others, or do we need the state to tell us? To ask the question this way could be understood as a provocation. It might suggest that the possibility of private rights and duties - a possibility that common law takes for granted and which lawyers witness in their daily practice threatens the foundations of the legal realist jurisprudential project and the liberal political project. But it is not my intention here to attack those projects. I simply want to consider the possibility that legal realism and liberalism might not be …

The Second Amendment Implications Of Regulating 3d Printed Firearms, Michael L. Smith

Faculty Articles

3D printed firearms have arrived, and commentators are beginning to ask whether and how this new technology can be regulated. An inevitable question that governments and courts will need to confront when considering restrictions on 3D printed firearms is whether these restrictions violate the Second Amendment. In this paper, I argue that most restrictions on 3D printed firearms would survive Second Amendment challenges. In carrying out this argument, I consider a complete ban on the manufacturing and possession of 3D printed firearms and conclude that even this complete ban would be likely to survive Second Amendment challenges. Because these particularly …

The American Legal Profession In The Twenty-First Century, Stephen M. Sheppard

Faculty Articles

Lawyers in the United States work in public service, private counseling, and dispute resolution, but many also work outside of traditional legal practice. The million-member American bar, second largest in the world, grows more diverse by gender, and ethnicity and older on average. All members of this learned profession must qualify by education or examination and by proof of good character and fitness before taking an oath to serve as an attorney. Thence, there are few limitations on the form of legal practice, though many law firms require an associateship before an attorney becomes an owner of the firm. Economic …

Think Twice: Charging Orders And Creditor Property Rights, Chad J. Pomeroy

Faculty Articles

What do you do? As a lawyer (or prospective lawyer), I mean – what do you do (or what will you do) in exchange for a salary or hourly fee? You will probably be expecting a lot of money for your services; so what, exactly, is it that you will do to justify that payment?

The answer, of course, is varied because lawyers do lots of different things. And, among these activities, there are some things that only lawyers can do. Chief among those is suing people. Suing people is something that only lawyers do because states do not generally …

Scientific, Legal, And Ethical Foundations For Texas Water Law., Gabriel Eckstein, Amy Hardberger

Faculty Articles

Water law is the field of law concerned with the ownership, control, and use of water resources, both surface and subsurface. Although most closely related to property law, recent developments in other legal fields, especially in environmental law, have heavily influenced the interpretation, application, and development of water law. As a result, water law today encompasses a broad perspective and often takes into account individual and community rights, environmental issues, commerce and economics, and other societal and legal concerns. Significantly, modern water law is also an interdisciplinary practice. In light of the continuously expanding body of knowledge of the hydrologic …