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Legal Classics: After Deconstructing The Legal Canon, Francis J. Mootz Iii

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The debate over the canon has gripped the University in recent years. Defenders of the canon argue that canonical texts embody timeless and universal themes, but critics argue that the process of canonization subordinates certain people and viewpoints within society in order to assert the existence of a univocal tradition. Originating primarily in the field of literary criticism, the canon debate recently has emerged in legal theory.

Professor Francis J. Mootz argues that the issues raised by the canon debate are relevant to legal scholarship, teaching and practice. After reviewing the extensive commentary on the literary canon, Professor Mootz criticizes …

The Paranoid Style In Contemporary Legal Scholarship, Francis J. Mootz Iii

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This paper criticizes Pierre Schlag's postmodern legal theory by arguing that his idealized critic exhibits the style of functioning that we commonly would attribute to a paranoid individual. The paper concludes that a dialogical model of postmodern thought inspired by Hans-Georg Gadamer's philosophical hermeneutics provides a more helpful basis for contemporary legal theory.

Aspirations And Reality In The Law And Politics Of Health Care Reform: Examining A Symposium On (E)Qual(Ity) Care For The Poor, Ann C. Mcginley

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Although the poor had suffered from insufficient health care for years, it was only when the middle class felt the economic pinch that health care reform moved to the top of the national agenda. In this way, the poor, a group with little political power, could benefit from the enormous political power of the middle class. In the Fall of 1992, it appeared that it was time for the poor to consider building a coalition with the middle class to work for universal coverage and improved quality of care. Yet, many questions remained about whether a coalition would benefit the …

Advising The President: Separation Of Powers And The Federal Advisory Committee Act, Jay S. Bybee

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This Article examines the tensions between Congress, the judiciary, and the President over presidential use of advisory committees. It argues that courts, in attempting to avoid difficult constitutional questions, have misread the Federal Advisory Committee Act (“FACA”). Properly construed, FACA violates separation of powers by limiting the terms on which the President can acquire information from nongovernmental advisory committees.

The author argues that the President does have the power to consult with outside advisers, and that FACA unconstitutionally infringes upon that power. FACA fails to draw a distinction between congressionally created advisory committees and presidentially created advisory committees, and assumes …

The Limitations Of Legislation, David Orentlicher

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No abstract provided.

The New Legal Hermeneutics, Francis J. Mootz Iii

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Gregory Leyh has edited a volume of essays commissioned “to examine the intersections between contemporary legal theory and the foundations of interpretation” as explored in contemporary hermeneutics. The essays are diverse and multidisciplinary, but each sheds light on perplexing issues of legal interpretation that have exhausted commentators in recent years. The contributors share a broad agreement that we must reject the picture of law as an autonomous, insulated discourse and instead must regard legal discourse as one of many interrelated practices rooted in our character as interpretive beings.

Each contributor addressees the central concerns defined by the leading philosopher of …

Law And Philosophy, Philosophy And Law, Francis J. Mootz Iii

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A roundtable discussion about the relevance of contemporary hermeneutical philosophy for legal theory raises a foundational question often neglected in interdisciplinary articles: What is the relationship between law and philosophy? The burgeoning scholarship drawing connections between legal theory and philosophy increasingly has come under attack for displaying a naive view about the potential legitimate exchanges between philosophers and legal academics. I have written elsewhere at length about the important insights that philosophical hermeneutics can lend to jurisprudential discussions of the rule of law. In this essay, I develop my argument by stepping back and attending more generally to the connections …

Deciding To Kill: Revealing The Gender In The Task Handed To Capital Jurors, Joan W. Howarth

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Day after day, across this country, ordinary people are summoned to court for a selection process that ultimately leaves them in a room deciding, with other jurors, whether a criminal defendant should be killed. The task handed to these jurors is an awesome, personal, moral decision, encased within the complex legal standards and procedures that constitute modern capital jurisprudence. The doctrine that created and sustains this moment of conscience reflects an ongoing struggle of rule against uncertainty, reason against emotion, justice against mercy, and thus, at one level, male against female. Capital jurisprudence -- the law for deciding whether to …

Turning And Turning In The Widening Gyre: The Problem Of Potential Conflicts Of Interest In Bankruptcy, Nancy B. Rapoport

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This article is the first in a series of articles discussing the problem of conflicts of interest in bankruptcy cases. It argues that the traditional means for discovering and handling conflicts of interest - based on state-law ethics rules - fundamentally misconceives the problem in a bankruptcy context. State law ethics rules presume that the parties are always in static positions; in bankruptcy law, alliances shift all the time. The article proposes a possible method of handling potential conflicts of interest in bankruptcy cases.

Condescending Contradictions: Richard Posner's Pragmatism And Pregnancy Discrimination, Ann C. Mcginley, Jeffrey W. Stempel

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Richard Posner’s, the Chief Judge of the United States Court of Appeals for the Seventh Circuit, judicial actions have been criticized, primarily for inconsistently commingling economic analysis with other approaches to decisionmaking in an effort to reach personally pleasing results that are at odds with Posner's professed commitment to methodological rigor. Although criticism of Posner's judging is diverse, a common theme is that he too frequently marshals his argumentative force merely to uphold the economic rights of the powerful. In other words, according to the critics, after the rush of intellectual excitement subsides, litigants and the justice system are left …

Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel

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Professors Rochelle Dreyfuss and Stephen Subrin first presented their ideas on the 1993 Amendments to the Federal Rules of Civil Procedure (Civil Rules) at the 1994 Annual Meeting of the Association of American Law Schools (AALS) in a program titled, “The 1993 Discovery Amendments: Evolution, Revolution, or Devolution?” After the program, I was left with the depressing view that the answer was devolution, which is defined as a “retrograde evolution,” or “degeneration.” Dreyfuss provides a detailed but succinct review of the changes in discovery occasioned by the new rules as well as a vantage point for assessing the social and …

Mandatory Non-Anonymous Testing Of Newborns For Hiv: Should It Ever Be Allowed?, Jean R. Sternlight

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In response to cries from both the public and the medical community for increased research and improved treatments with respect to pediatric AIDS, some state legislatures have attempted to enact legislation that would require routine mandatory testing of newborns for HIV on a non-anonymous basis.

Those who favor mandatory testing of newborns contend that such testing is necessary in order to protect the health of newborns and to ensure that the newborns' doctors provide them with adequate care. Moreover, testing advocates argue that because most hospitals already screen anonymously, failing to inform parents of the test results is inappropriate and …

Prosecuting And Defending Violations Of Genocide And Humanitarian Law: The International Tribunal For The Former Yugoslavia, Christopher L. Blakesley

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A symposium discussing the international war crimes tribunal for the former Yugoslavia, established by the United Nations Security Council’s . Christopher L. Blakesley discussed the procedural aspects of the War Crimes Tribunal.

Obstacles To The Creation Of A Permanent War Crimes Tribunal, Christopher L. Blakesley

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Individual liability for war crimes is difficult to enforce and is unlikely to be accepted uniformly by states.

Individual criminal responsibility is the cornerstone of any international war crimes tribunal. Nuremberg Principle I provides that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” Acts by heads of state or other government officials, even if committed in an official capacity, may not constitute an immunity defense to or mitigate criminality. These officials, therefore, could also be held responsible for offenses committed pursuant to their orders. Additionally, liability for criminal …

Constitutional Implications Of Acquisition-Value Real Property Taxation: Assessing The Burdens On Travel And Commerce, Mary Lafrance

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This article is the second in a two-part series addressing the constitutional implications of acquisition-value real property taxation. This Article addresses constitutional issues raised by systems of real property taxation that base a property owner's tax assessment not on the current value of the property but on its value on the date the taxpayer acquired it. The first Article in this series described the operation of acquisition-value systems of real property taxation such as those adopted by California in 1978 and Florida in 1992, and evaluated the equal protection challenges to the California system (“Proposition 13”) which culminated in the …

Constitutional Implications Of Acquisition-Value Real Property Taxation: The Elusive Rational Basis, Mary Lafrance

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This article is the first in a two-part series addressing the constitutional implications of acquisition-value real property taxation. Acquisition-value real property taxation systems represent a departure from the traditional practice of taxing real property on its current fair market value. In contrast to traditional systems, which are still employed by the vast majority of states, under acquisition- value taxation a real estate owner's property tax liability is determined by the value of the property when the taxpayer acquired it. In periods of rising real estate prices, such a scheme compels later buyers to shoulder a higher annual tax liability than …

The Trivilization Of Religion, Reveiwing Stephen L. Carter, The Culture Of Disbelief: How American Law And Politics Trivialize Religious Devotion (1993), Leslie C. Griffin

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No abstract provided.