Law Commons^™

Evidence In A Difference Voice: Some Thoughts On Professor Jonakait's Critique Of A Feminist Approach, Aviva Orenstein

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Pink Elephants In The Rape Trial: The Problem Of Tort-Type Defenses In The Criminal Law Of Rape, Aya Gruber

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Of Flutes, Oboes And The As If World Of Evidence Law, Richard O. Lempert

Articles

Reading Allen's article, I am reminded of a cold war parable I heard during the 1960s. It concerned a flute and an oboe who joined an orchestra one year and immediately set to quarrelling. The flute was distressed because whenever it was playing at its lyrical best the oboe would enter. drowning it out. The oboe was affronted because its deepest, most sonorous passages were invariably ruined by the high-pitched flute butting in. When the orchestra split up for the summer and these quarrelsome instruments went their separate ways, the flute, as it angrily contemplated the oboe, found itself stretching …

Local Government And Constitutional Torts: In The Georgia Courts, R. Perry Sentell Jr.

Mercer Law Review

The concept of governmental immunity from civil responsibility has long troubled many. An ingredient of this country's common law heritage, the concept nevertheless yields the epitome in philosophic faceoffs. On the one hand, we inherently disavow governmental divinity: we subscribe to a rule-of-law demand that government restores what it destroys. On the other hand, we recognize that government's essential mission is unique and involuntary: we understand that a strictly private-sector accounting may well imperil government's public performance. Traditionally, neither position has completely prevailed, and legal history unfolds a striking account of accommodation.

None of the accounts is more striking than …

Wills, Trusts, And Administration Of Estates, James C. Rehberg

Mercer Law Review

One of the most difficult tasks in the writing of a survey article is that of organization. Judicial decisions and legislative enactments just refuse to appear in any logical sequence and, just as a case or statute has been neatly assigned to a certain section of the paper, an issue pops up that suggests that it would fit better in another section. Should the discussion of that case or statute be moved into that other section or left where it is?

Given this difficulty, an effort will be made to classify the materials in a way that the major issues …

Workers' Compensation, H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon Jr., Katherine D. Dixon

Mercer Law Review

The 1996-1997 survey period was an active one in the field of workers' compensation. Significant decisions were handed down in a number of areas that will significantly impact important parts of the workers' compensation system.

The first section of this Article reviews what, by comparison to previous years, was a relatively mild legislative session with regard to workers' compensation. The next two sections address important cases that affect the Drug-Free Workplace Act' and the defense of cases involving intoxication as well as important cases involving a claimant's burden of proof to show a change in condition. The remainder of the …

The Persistent Vegetative State: A View Across The Legal Divide, H. Richard Beresford

Cornell Law Faculty Publications

Praise for Fred Plum can take many forms: for pedagogical dynamism, for depth and breadth of contributions to neurology and neuroscience, for sure-handed guidance of a department that has infused neurology with today’s and tomorrow’s leaders, and for a truly uncanny ability to fan a drive to excel in those he has touched. Mindful of his admonition to be substantive in what one says and does, my praise will embody a few reflections on the enduring legal and social impact of the “point of view” he and Bryan Jennett authored for the journal Lancet in 1972.

The Concept Of Religion, Eduardo M. Peñalver

Cornell Law Faculty Publications

Training In Law And Psychology: Models From The Villanova Conference, Donald N. Bersoff, Jane Goodman-Delahunty, J. Thomas Grisso, Valerie P. Hans, Norman G. Poythress Jr., Ronald G. Roesch

Cornell Law Faculty Publications

Although the domain of law and psychology is a burgeoning and popular field of study, there has never been a concerted effort to evaluate current training models or to develop newer, more effective ones. Forty-eight invited participants attended a national conference held at Villanova Law School to remedy this deficiency. Working groups addressed issues of education and training for the undergraduate level; for doctoral level programs in law and social science; for forensic clinical training; for joint-degree (JD/PhD-PsyD) programs; for those in practica, internships, and postdoctoral programs; and for continuing education. This article delineates levels and models of training in …

Revenue And Taxation Income Taxes: Provide For Non Income Taxation And No Withholding Tax On The Distributive Share Of A Nonresident Member Of A Resident Limited Partnership Which Derives Income Exclusively From Buying, Selling, Dealing In, And Holding Securities On Its Own Behalf, Assunta Deevey

Georgia State University Law Review

The Act provides for changes in the income taxation of nonresident members of resident limited partnerships. A nonresident member of a resident limited partnership which derives income exclusively from buying, selling, dealing in, or holding securities on its own behalf, not as a broker, is not required to include on his or her individual return his or her distributed shares, whether distributed or not, of the net income of the partnership for the taxable year. Such net income is not considered taxable income. The same type of nonresident member of a resident limited partnership is also not subject to a …

Hanging Up On Consumers: Why The Fcc Cannot Stop Slamming In The New Telecommunications Market , Christopher R. Day

American University Law Review

No abstract provided.

The Age Of Unreason: The Impact Of Reasonableness, Increased Police Force, And Colorblindness On Terry "Stop And Frisk", Omar Saleem

Journal Publications

No abstract provided.

The V-Chip And The Constitutionality Of Television Ratings, Benjamin C. Zipursky, Eric Burns, Donald W. Hawthorne, Thomas Johnson

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Political Campaign Spending Caps And The First Amendment: Buckley V. Valeo Revisited, Wayne Barrett, Edward W. Hayes, Erik Joerss, William G. Kastin

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Risk-Utility Analysis In The Failure To Warn Context, Paul D. Rheingold, Susan B. Feinglass

University of Michigan Journal of Law Reform

Elsewhere in this Symposium issue, Professor Mark Geistfeld presents an argument favoring the application of risk-utility analysis to the duty to warn doctrine encompassed by the Restatement (Third) of Torts. In addition, the comments and the reporters' notes to the Restatement (Third) suggest altering the traditional duty to warn if the warning would cause "information overload," if the danger is "open and obvious," or if the danger applies to only a small percentage of potential customers.

In response to Geistfeld and the Restatement (Third) comments and notes, Rheingold and Feinglass assert that applying a risk-utility analysis or altering the …

Liability Of Suppliers Of Natural Raw Materials And The Restatement (Third) Of Torts: Products Liability- A First Step Toward Sound Public Policy, M. Stuart Madden

University of Michigan Journal of Law Reform

From its inception, the law governing liability for damage or injuries caused by defective products has pertained to potential liability for products that have been processed, finished, or fabricated. Naturally occurring raw materials, for the most part, have been considered beyond doctrinal concern, largely because characterizing a merchantable raw material, such as copper or pigiron, as defective is conceptually difficult. Nevertheless, certain doctrines that developed for the application of products liability to other products have gained sporadic application to naturally occurring raw materials, including the sophisticated purchaser defense, the bulk supplier defense, and the ingredient supplier defense. Madden argues that …

Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin

University of Michigan Journal of Law Reform

Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.

Risk-Utility Balancing In Design Defect Cases, David G. Owen

University of Michigan Journal of Law Reform

Design defectiveness is generally defined in terms of a risk-utility balance, the form of liability test adopted by the Restatement (Third) of Torts: Products Liability. However, confusion abounds in how courts formulate such balancing tests. A national survey of recent appellate court decisions reveals that courts generally define the balance in terms of the product's risks and utility, a formulation which appears to call for weighing the product's global costs against the product's global benefits. So defined, the design defect test is incorrect. What appellate courts mean for juries to decide, and what juries ordinarily do in fact decide, …

Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz

University of Michigan Journal of Law Reform

Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an …

Inadequate Product Warnings And Causation, Mark Geistfeld

University of Michigan Journal of Law Reform

The market failure that provides an economic justification for imposing tort liability on product sellers for design and manufacturing defects also justifies tort liability for inadequate warnings. In general, the liability standards proposed in the most recent draft of the Restatement (Third) of Torts: Products Liability have the potential to remedy this market failure, although this purpose is not furthered by the Draft's requirement that plaintiffs prove that an adequate warning would have prevented the injury. Unless courts presume causation (as most currently do), sellers will not have sufficient incentive to warn about unavoidable product risks. Moreover, there is no …

Timmy Tumble V. Cascade Bicycle Co.: A Hypothetical Case Under The Restatement (Third) Standard For Design Defect, Hildy Bowbeer, Todd A. Cavanaugh, Larry S. Stewart

University of Michigan Journal of Law Reform

These briefs were written for a hypothetical design defect case. Bowbeer and Cavanaugh argue for, and Stewart argues against, the adoption of the Restatement (Third)'s reasonable alternative design standard and the rejection of the Restatement (Second)'s consumer expectations test in the hypothetical State of Hutchins. The authors discuss the relative merits of the two tests, as well as the status to be accorded to Restatement standards in general. To do so Bowbeer, Cavanaugh, and Stewart rely upon precedent from other jurisdictions, one hypothetical Hutchins case, and various policy arguments advanced in the deliberations about adopting the new Restatement. In …

Statutory Compliance And Tort Liability: Examining The Strongest Case, Michael D. Green

University of Michigan Journal of Law Reform

Professor Green addresses the matter of the proper balance between the tort system and regulation in the context of prescription drugs and the FDA's vigorous oversight of the industry. He articulates several reasons why a regulatory compliance defense, in which tort law would defer to FDA regulation, is quite attractive. Despite the superior expertise of the FDA in assessing the benefits and risks of a drug, a regulatory compliance defense is considerably more problematical than might appear at first glance. Ascertaining compliance with FDA requirements could be a lengthy and complicated inquiry that would either replace or supplement the issues …

Assessing Punitive Damages..., Cass R. Sunstein, Daniel Kahneman, David Schkade

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Evaluating Purely Reproductive Disorders Under The Americans With Disabilities Act, Todd Lebowitz

Michigan Law Review

Approximately 2.8 million American couples suffer from infertility, a condition generally defined by the medical community as the failure to conceive after one year of unprotected intercourse. During the past thirty years, diagnostic and therapeutic techniques for treating infertility have improved drastically, enabling many previously infertile couples to bear children. These techniques, however, involve considerable expense and inconvenience, frequently requiring patients to take time off from work. Disputes with employers may follow, sometimes resulting in the infertile employee's termination. Some terminated employees, claiming that infertility constitutes a disability, then sue their former employers under the Americans with Disabilities Act of …

Holmes' Failure, Louise Weinberg

Michigan Law Review

I have just set down the March 1997 Harvard Law Review, with its centennial celebration of Oliver Wendell Holmes' The Path of the Law. The Path of the Law is a grand thing, in my view Holmes' best thing. But just the same, I find myself surprised that on this occasion none of its celebrants raised what has always seemed to me a weakness of the piece, and of Holmes' much earlier book, The Common Law. This is a weakness that is at once a reflection and a forecast of the failure of its author. Writers today do seem to …

The Easy Case Of The Priority Of Secured Claims In Bankruptcy, Steven L. Schwarcz

Duke Law Journal

For years, scholars have questioned the efficiency of secured debt, many suggesting that it transfers uncompensated risk to unsecured creditors. However, prior writing on the value of secured debt ignores the distinction between the use and the availability of secured credit. As a result, previous models of secured debt erroneously assume that a debtor that can borrow on an unsecured basis will nevertheless borrow on a secured basis to reduce interest cost. This Article combines theory, experience, and empirical tests to show that earlier models do not reflect the expected behavior of an economically rational debtor. These models fail to …

Robert Mcnamara And The Art And Law Of Confession: “A Simple Desultory Philippic (Or How I Was Robert Mcnamara’D Into Submission)”, Robert N. Strassfeld

Duke Law Journal

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

Closing The Book On Jusen: An Account Of The Bad Loan Crisis And A New Chapter For Securitization In Japan, Howard M. Felson

Duke Law Journal

No abstract provided.

Baseball's Antitrust Exemption Repealed: An Analysis Of The Effect On Salary Cap And Salary Taxation Provisions, Thomas C. Picher

Seton Hall Journal of Sports and Entertainment Law

No abstract provided.