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Articles 151 - 178 of 178
Full-Text Articles in Courts
The New Requirement Of Enforcement Reliance In Commercial Promissory Estoppel: Section 90 As Catch-22, Sidney Delong
The New Requirement Of Enforcement Reliance In Commercial Promissory Estoppel: Section 90 As Catch-22, Sidney Delong
Faculty Articles
Any comprehensive examination of recent appellate court decisions will disclose that the legal doctrine of promissory estoppel has not become a significant source of commercial contractual obligation. Although commercial promissory estoppel claims are often made, plaintiff victories are very rare. These results are difficult to reconcile with frequent scholarly contentions to the effect that contemporary courts have become more receptive to claims of promissory estoppel and have liberalized its doctrinal requirements. More important, the promisor behavior that is incidentally disclosed in reported opinions also undermines academic arguments that rules providing for promissory estoppel have commercial utility. The decisions suggest that …
Autonomy And Death, Annette E. Clark
Autonomy And Death, Annette E. Clark
Faculty Articles
In this article, Professor Clark explores the contours of the current debate over physician-assisted death. She begins by focusing on the legal issues raised by statutory attempts to either legalize or criminalize physician-assisted death, with particular emphasis on the constitutional questions that are currently before the United States Supreme Court. She then examines physician-assisted death from both medical and societal perspectives. Professor Clark uses a thought experiment in which assisted death is facilitated by persons other than physicians, and in doing so, questions whether physicians are the proper persons in whom to wrest power over assisted death. She points out …
Youth Justice In A Unified Court: Response To Critics Of Juvenile Court Abolition, Janet Ainsworth
Youth Justice In A Unified Court: Response To Critics Of Juvenile Court Abolition, Janet Ainsworth
Faculty Articles
In this article, Professor Ainsworth argues that a unified criminal justice system is preferable to our present two-tiered adult-juvenile court system. In fact, she contends that the cultural and ideological assumptions that underpin the current two-tiered justice system not only engender many of the serious shortcomings of the juvenile justice system, but also serve to exacerbate the very policies and practices of the adult criminal justice system that make it so abhorrent to defenders of the juvenile court. Critics of juvenile court abolitionists thus miss the point when they argue that juveniles would be worse off than they are at …
On Comparing Apples And Oranges: The Judicial Clerkship Selection Process And The Medical Matching Model, Annette E. Clark
On Comparing Apples And Oranges: The Judicial Clerkship Selection Process And The Medical Matching Model, Annette E. Clark
Faculty Articles
In this article, Professor Clark joins the debate over whether the federal judiciary should utilize the medical matching model to reform the judicial clerk selection process. She analyzes the medical experience with the residency match in order to detail the ways in which proponents of a judicial clerk match have overstated the benefits, underestimated the costs, and overlooked the differing and potentially conflicting interests of judges and clerkship applicants in the selection process. Professor Clark concludes that reform of the judicial clerk selection process should be guided by a realistic appraisal of the costs and benefits of a matching system.
Juvenile Detention Law In The District Of Columbia: A Practitioner’S Guide, Paul Holland, John Copacino, Milton Lee
Juvenile Detention Law In The District Of Columbia: A Practitioner’S Guide, Paul Holland, John Copacino, Milton Lee
Faculty Articles
On each and every day of the year (excluding Sundays), children are presented for an initial hearing in the Family Division, Juvenile Branch of the Superior Court of the District of Columbia. Because of unusually broad and often misapplied preventive detention laws, children charged with property offenses such as theft, or status offenses such as truancy and ungovernability, are subject to detention for an indefinite period of time through summary procedures which do not adequately ensure the reliability of the detention decision. Because the detention of juveniles has become routine in superior court, its potential harm to the child is …
Whatever Happened To The Right To Treatment: The Modern Quest For An Historical Promise, Paul Holland, Wallace Mlyniec
Whatever Happened To The Right To Treatment: The Modern Quest For An Historical Promise, Paul Holland, Wallace Mlyniec
Faculty Articles
Since the creation of the first juvenile court in 1899, state training schools have been the primary place of confinement for children removed from their homes. In theory such places were supposed to be home-like and rehabilitative in their facilities and care. In reality they were usually impersonal, understaffed, unhealthy, and even dangerous institutions, devoid of rehabilitative programs. From the late 1960s to the early 1980s, advocates for children pursued legislative and other policy reforms. They argued that children in state institutions had both a statutory and constitutional right to treatment. In this context, the authors of this article reassess …
When Words Fail Me: Diagramming The Rule Against Perpetuities, Mark Reutlinger
When Words Fail Me: Diagramming The Rule Against Perpetuities, Mark Reutlinger
Faculty Articles
Professor Reutlinger discusses the difficulties in teaching the Rule Against Perpetuities—the rule does not lend itself to mere verbal explanation and therefore makes it difficult to teach only through the Socratic method. In this article he offers an explanation and various examples of his "bridging the gap" diagrams as he now uses them in his classroom discussions on the Rule Against Perpetuities.
Snake Pits And Unseen Actors: Constitutional Liability For Indirect Harm, Julie Shapiro
Snake Pits And Unseen Actors: Constitutional Liability For Indirect Harm, Julie Shapiro
Faculty Articles
The purpose of this article is to find order amidst the chaos that predominates in analysis of indirect harm cases. It is the author’s hope that such an effort will assist courts, scholars, and advocates who continue to be confronted by these cases, as well as identify a focused agenda for future commentary, inquiry, and action.
The Right To Health Care In The United States, Ken Wing
The Right To Health Care In The United States, Ken Wing
Faculty Articles
This article provides an analysis of the history of constitutional interpretation in the United States, and reveals that any right Americans have to health care is a political rather than constitutional right.
Abortion And The Pied Piper Of Compromise, Annette E. Clark
Abortion And The Pied Piper Of Compromise, Annette E. Clark
Faculty Articles
In this article, Professor Clark offers a detailed analysis of the controversy among legal scholars which has long surrounded the issue of legal regulation of abortion. Professor Clark begins by focusing on a recent book by Professor Laurence Tribe, Abortion: The Clash of Absolutes. She argues that although Tribe claims to seek a compromise solution to the abortion problem, he fails in this pursuit both because he does not truly search for compromise and because he is unwilling to explore intermediate moral or legal positions that are not acceptable to either the pro-choice or pro-life movements. In contrast, Professor Clark …
Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey
Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey
Faculty Articles
When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur. …
Compounding Confusion And Hampering Diversity: Life After Finley And The Supplemental Jurisdiction Statute, Richard D. Freer
Compounding Confusion And Hampering Diversity: Life After Finley And The Supplemental Jurisdiction Statute, Richard D. Freer
Faculty Articles
It has been a tough couple of years for supplemental jurisdiction. In recent decades, the doctrine, which earlier had been called the "child of necessity and sire of confusion," had become somewhat less confusing. The Supreme Court created a flurry of concern over the future of the doctrine with a pair of restrictive decisions in the late 1970s, but showed no further interest; the lower courts generally interpreted those holdings narrowly. With exceptions in a couple of areas, the application of supplemental jurisdiction in the various joinder situations became relatively clear and predictable, and the doctrine played a major role …
Re-Imagining Childhood And Reconstructing The Legal Order: The Case For Abolishing The Juvenile Court, Janet Ainsworth
Re-Imagining Childhood And Reconstructing The Legal Order: The Case For Abolishing The Juvenile Court, Janet Ainsworth
Faculty Articles
Although the institution of the juvenile court developed rather recently in our legal system, it is now quite firmly established: every American state and nearly every industrialized nation has a juvenile court system in place. The juvenile court is not without its critics, however. In this Article, Professor Janet Ainsworth recommends its complete abolition. Professor Ainsworth contends that society's current view of the nature of adolescence no longer comports with the turn-of-the century view that originally informed the development of an autonomous juvenile court, thus undermining the ideological legitimacy of a separate court system for juveniles. In addition, Professor Ainsworth …
Testimonial Consistency: The Hobgoblin Of The Federal False Declaration Statute, Sidney Delong
Testimonial Consistency: The Hobgoblin Of The Federal False Declaration Statute, Sidney Delong
Faculty Articles
This article focuses on the inconsistent statement provision of the Federal False Declaration Statute. Part I of this article identifies certain anomalous aspects of perjury that make it particularly difficult to control by threats of punishment. Perjury's resemblance to an innocent mistake creates a risk that criminal sanctions will be misapplied. These sanctions may have counterproductive effects, at times inducing people to commit perjury and at others inhibiting people from correcting inaccurate testimony that they have previously given. Part II demonstrates the way in which the conflict between the goals of deterrence and mitigation is manifested in the federal perjury …
Workable Antitrust Law: The Statutory Approach To Antitrust, Thomas C. Arthur
Workable Antitrust Law: The Statutory Approach To Antitrust, Thomas C. Arthur
Faculty Articles
This Article will demonstrate the superiority of the statutory approach for producing more stable and consistent antitrust law. Part I details the development of the constitutional approach to antitrust, demonstrating how the rise of the pragmatic and instrumentalist view of law led to the displacement of the original statutory approach to antitrust. Part II illustrates that the constitutional approach fundamentally cannot produce workable antitrust law. It summarizes both the doctrinal disarray that continues to plague each major area of antitrust law and the irreconcilable policy prescriptions of the contending antitrust "schools." Part III presents an alternative, statutory approach to antitrust …
Farewell To The Sea Of Doubt: Jettisoning The Constitutional Sherman Act, Thomas C. Arthur
Farewell To The Sea Of Doubt: Jettisoning The Constitutional Sherman Act, Thomas C. Arthur
Faculty Articles
This Article proceeds as follows. Part I examines the legislative history of the Sherman Act to discover the policy choices actually made by the 1890 Congress. Part II sketches the development, operation and social costs of the conventional "constitutional" approach which now dominates section 1 adjudication. This Part demonstrates how the Supreme Court's failure to establish a workable methodology for resolving hard cases in the first Sherman Act decisions enabled it later to create the myth that the 1890 Congress made no hard policy choices. It then shows that the lack of a recognized statutory standard inevitably leads to doctrinal …
"Phoenix Rising" And Federalism Analysis, David Skover
"Phoenix Rising" And Federalism Analysis, David Skover
Faculty Articles
The reaction to the Supreme Court's ruling in Garcia v. San Antonio Metropolitan Transit Authority leaves the decided impression that Garcia is a case of some importance, a milestone in the evolution of the constitutional doctrine of federalism. Whether Garcia will mark a radical shift in the jurisprudence of federalism, with major practical ramifications in the balance of federal and state economic regulatory powers, or whether the case is destined for a quick and unceremonious overruling is a question of some moment. This article evaluates the probable significance of Garcia for the development of the constitutional doctrine of federalism.
The Perils Of Judicial Statesmanship, James E. Bond
The Perils Of Judicial Statesmanship, James E. Bond
Faculty Articles
This article addresses the issue of what is fit for a Supreme Court Justice to do and whether the Court is acting within its constitutional authority. The United States is a democratic republic in which power flows from the people to elected representatives who remain answerable to the people. By contrast, the Justices sit for life and answer to no one. The Court is thus a profoundly antidemocratic institution. When and how the Court ought to exercise its anti-democratic authority is the only enduring important question in American constitutional law.
The Writ Of Prohibition In Arkansas, William Murray Tabb
The Writ Of Prohibition In Arkansas, William Murray Tabb
Faculty Articles
No abstract provided.
The Court Years, 1939-1975: The Autobiography Of William O. Douglas, James E. Bond
The Court Years, 1939-1975: The Autobiography Of William O. Douglas, James E. Bond
Faculty Articles
This article is a book review that highlights William O. Douglas’s character and temperament, and suggests these very traits made his legacy on the Court a disappointment. Arguing that Douglas was uncommitted to judicial craft and simply championed cases close to his heart. The article bemoans Douglas’s lack of insight into constitutional adjudication, while noting the volumes anecdotal humor, the article cites the autobiography’s disingenuousness as cause to call it a work of fiction.
The Brethren-Woodward & Armstrong, James E. Bond
The Brethren-Woodward & Armstrong, James E. Bond
Faculty Articles
James E. Bond reviews Woodward & Armstrong’s The Brethren.
The Unconstitutionality Of Limitations Upon Donations To Political Committees In The 1976 Federal Election Campaign Act Amendments, David Skover
Faculty Articles
The Supreme Court's decision in Buckley v. Valeo partially dismantled the electoral reform program formulated in the 1974 Amendments to the Federal Election Campaign Act of 1971. The Court declared that the Act's limitations on expenditures by candidates and independent expenditures in federal elections unconstitutionally burdened political speech and association, while it upheld restrictions on contributions to candidates. After five months of deliberation, Congress attempted to salvage its design for electoral reform by enacting the Federal Election Campaign Act Amendments of 1976. Responding to Buckley's approval of restrictions on political contributions, Congress imposed new limits on "contributions" to political committees. …
Prior Inconsistent Statements: Presently Inconsistent Doctrine, Mark Reutlinger
Prior Inconsistent Statements: Presently Inconsistent Doctrine, Mark Reutlinger
Faculty Articles
The common law has come a long way since Sir Walter Raleigh was convicted of treason on the basis of accusations contained in unproduced letters and the hearsay declarations of unproduced witnesses. However, despite the painstaking development and innumerable formulations and reformulations of the hearsay rule over the past several centuries, there are areas of that body of law which are as yet unsettled and the subject of heated controversy. One such area is that of prior inconsistent statements of witnesses, the controversy over which has continued over the years and has surfaced once again with promulgation of the new …
Policy, Privacy, And Prerogatives: A Critical Examination Of The Proposed Federal Rules Of Evidence As They Affect Marital Privilege, Mark Reutlinger
Policy, Privacy, And Prerogatives: A Critical Examination Of The Proposed Federal Rules Of Evidence As They Affect Marital Privilege, Mark Reutlinger
Faculty Articles
This article examines all aspects of proposed federal rules of evidence affecting marital privilege in the United States. It also provides an explanation of the reasons advanced by the Advisory Committee for abolition of martial and other state-created privileges; Common law origins of marital privilege.
Mental Commitment Cases Of 1971 Supreme Court Term, Ken Wing, R. Carman
Mental Commitment Cases Of 1971 Supreme Court Term, Ken Wing, R. Carman
Faculty Articles
Even in areas where legal representation has become available to the poor through the efforts of Legal Services programs, there is still one group that is almost universally denied representation: those confined under the various forms of civil commitment and patients in mental health institutions. Almost by definition in need of legal counsel and predictably indigent, they are faced with interpersonal and institutional barriers that further reduce their chances to obtain representation. It is the position of the National Health Law Program that Legal Services programs throughout the country should focus some of their attention towards this portion of their …
Victimless Crimes: A Proposal To Free The Courts, Robert C. Boruchowitz
Victimless Crimes: A Proposal To Free The Courts, Robert C. Boruchowitz
Faculty Articles
Victimless "crimes"—acts that are presently outside the law but which have no readily identifiable victim—account for almost half of the cases handled by United States courts. They include behavior which may reflect illness and which requires medical and therapeutic attention (such as drunkenness), as well as behavior condemned as varying from moral or social standards and leading to harmful behavior (such as vagrancy and curfew violations). If the burden of regulating this type of behavior were removed from the criminal justice system, perhaps one half of the courts' current case load could be eliminated. Furthermore, persons caught in deviant conduct …
Discretionary Justice: A Preliminary Inquiry, Henry Mcgee
Discretionary Justice: A Preliminary Inquiry, Henry Mcgee
Faculty Articles
Professor McGee reviews Discretionary Justice: A Preliminary Inquiry, by Kenneth Culp Davis. Davis, suggesting both that we are a government of men as much as of laws and that discretion begins where law ends, sets out to determine how much unnecessary discretionary power can be contracted and how necessary discretionary power can be both confined and structured.
Lay Advocacy And "Legal Services To Youth": Summaries On The Use Of Para-Legal Aides, Henry Mcgee
Lay Advocacy And "Legal Services To Youth": Summaries On The Use Of Para-Legal Aides, Henry Mcgee
Faculty Articles
This article discusses the incredibly effective use of legal assistants in the project implemented to assist poor urban youth with legal issues—Legal Services to Youth sponsored by the University of Chicago Law School's Center for Studies in Criminal Justice, under a Ford Foundation grant, was directed to a specialized consumer group, boys under 17 and girls under 18, the jurisdictional age ceiling in the Cook County, Illinois Juvenile Court. Legal assistants were recruited in the area served, and an attempt was made to locate persons who were by background and experience likely to be sympathetic to youth "in trouble." The …