Digital Commons Network^™

Tribute In Memory Of Herbert Wechsler, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

The Direction Of Corporate Law: The Scholars' Perspective, John C. Coffee Jr., Richard A. Booth Marbury Research Professor Of Law, R. Franklin Balotti, David C. Mcbride, Edward P. Welch

Faculty Scholarship

Transcript of a panel on a scholar's approach to corporation law.

A Citizen Of Fine Spirit, Douglas R. Heidenreich

Faculty Scholarship

William T. Francis was (1869-1929), by most measures, the most successful of the early African American alumni of William Mitchell College of Law's predecessor law schools. Francis was a skilled lawyer, an adroit politician, a popular orator, a vigorous crusader for human and civil rights, and a respected U.S. diplomat.

Silence And Silencing: Their Centripetal And Centrifugal Forces In Cultural Expression, Pedagogy And Legal Discourse, Margaret E. Montoya

Faculty Scholarship

This article uses Critical Race Theory and LatCrit Theory in its analysis, methodologies, and purpose. I seek to disrupt silences around race and to provide the knowledge and skills for effective work on racial equity and justice. Language and voice have been subjects of great interest to scholars working in the areas of Critical Race Theory and Latina/o Critical Legal Theory. Silence, a counterpart of voice, has not, however, been well theorized. This Article is an invitation to attend to silence and silencing. The first part of the Article argues that one's use of silence is an aspect of communication …

O.J. As A Tale Of 2 Operas (Essays On The Trials Of The Century), Sherri L. Burr

Faculty Scholarship

The theme of this essay is that blacks and whites reacted differently to the O.J. criminal verdicts because they watched two different dramas unfold over the course of the trial. Many whites saw O.J. as the archetype of Otello, the heroic Moor who came to live within the midst of Europeans and married the lovely Desdemona, only to kill her in a jealous rage after she befriended another man. Many blacks perceived O.J.'s trial as a modernized Porgy and Bess, which features white police officers abusing power when they jail an innocent person because they are too lazy to search …

Evolving Indigenous Law: Navajo Marriage--Cultural Traditions And Modern Challenges, Antoinette M. Sedillo Lopez

Faculty Scholarship

Tribal regulation of marriage is an example of tribal government and tribal court using the legal system to reclaim traditional values and to resist (at least in part) the dominant values imposed on the Navajo Nation. Identity as Dine (the Navajos term to refer to themselves) is based on clan affiliations, which are determined by blood and marriage. Marriage has been an important and sacred institution in Navajo tradition. The Navajo Supreme Court and the Tribal Council have attempted to find a substantive law of marriage that respects traditional Navajo culture while meeting contemporary needs of Navajo people. The Navajo …

Weapons To Fight Insider Trading In The 21st Century: A Call For The Repeal Of Section 16(B), Michael H. Dessent

Faculty Scholarship

No abstract provided.

Exploration Of The Efficacy Of Class-Based Approaches To Racial Justice: The Cuban Context, An Latcrit Iv Symposium - Rotating Centers, Epanding Frontiers: Theory And Marginal Intersections- Forging Our Identity: Transformative Resistance In The Areas Of Work, Class, And The Law, Tanya K. Hernandez

Faculty Scholarship

The growing discord over the continuing use of race-conscious social justice programs in the United States has given rise to the consideration of replacing them with color-blind class-based affirmative action programs. Although there are a number of theoretical investigations into the proposal for class-based affirmative action, the discourse is short on practical assessments. This Article amplifies the class-based affirmative action debate by drawing lessons from Socialist Cuba's socioeconomic redistribution measures. Inasmuch as Socialist Cuba attempts to diminish racial disparities with the use of colorblind socioeconomic redistribution programs one can classify their strategy as a class-focused rather than a race-focused attack …

Adieu To Electrocution, Deborah W. Denno

Faculty Scholarship

This Article contends that there is no moral or legal reason to retain electrocution, particularly because other execution methods are available. It is clear that at some point soon, electrocution will no longer exist in this country and, as a result, throughout the world. By eliminating this perplexing vestige, the other problems with the death penalty may appear all that more offensive.

You Should Have Known Better, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Calm Before The Storm: First Amendment Cases In The 1998-99 Term, Joel Gora

Faculty Scholarship

No abstract provided.

Hercules, Herbert, And Amar: The Trouble With Intratextualism, Ernest A. Young, Adrian Vermeule

Faculty Scholarship

Commentary on, Akhil Reed Amar, Intratextualism, 112 Harvard Law Review 747 (1999).

The Law And The Human Target In Information Warfare: Cautions And Opportunities, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Standing While Black: Distinguishing Lyons In Racial Profiling Cases, Brandon L. Garrett

Faculty Scholarship

Plaintiffs challenging racial profiling must contend with the Supreme Court's decision in City of Los Angeles v. Lyons, which restricted standing for injunctive relief against government officials. This Note articulates a framework for assessing standing for injunctive relief based on case law following Lyons: Plaintiff must demonstrate a sufficiently "credible threat" of future harm where government conduct was authorized by a policy, practice, or custom and where plaintiff was law-abiding. Lyons analysis focuses exclusively on an individual's likelihood of future harm because the Court was reluctant to let the grievance of one individual support city-wide injunctive relief. Where racial profiling …

Rational Recreation And The Law: The Transformation Of Popular Urban Leisure In Victorian England , Rachel Vorspan

Faculty Scholarship

In this article, Rachel Vorspan investigates the complex role played by the courts in the social and cultural transformation of Victorian England. Through focusing on judicial rulings in the recreational as well as political and industrial contexts she explains how the English judiciary played an important function in "rationalizing" the major institutions and practices of urban leisure

Impeaching Lying Parties With Their Statements During Negotiation: Demysticizing The Public Policy Rationale Behind Evidence Rule 408 And The Mediation-Privilege Statutes, Lynne H. Rambo

Faculty Scholarship

Virtually all American jurisdictions have laws-either rules of evidence or mediation-privilege statutes or both-that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the negotiation statement …

Debating The Field Civil Code 105 Years Late, Andrew P. Morriss, Scott J. Burnham, James C. Nelson

Faculty Scholarship

In 1895, Montana adopted a version of the Field Civil Code--a massive law originally drafted by New York lawyer David Dudley Field in the early 1860s. The Civil Code (and its companion Political, Penal, and Procedural Codes) were adopted without debate, without legislative scrutiny, and without Montanans having an opportunity to grasp the enormity of the changes the Codes brought to the Montana legal system. In sponsoring this debate over whether to repeal the Civil Code, the Montana Law Review is finally giving Montana the opportunity to examine the merits of the Civil Code that she was denied 105 years …

The Direction Of Corporate Law: The Scholars' Perspective, John C. Coffee Jr., Richard A. Booth, R. Franklin Balotti, David C. Mcbride, Edward P. Welch

Faculty Scholarship

MR. BALOTTI: Good afternoon. My name is Frank Balotti and I've been asked to be the moderator for this afternoon's program. And one of the privileges that I get is to introduce the panel and to call them up to speak in some kind of order, I hope. And I hope that you and the audience will participate by asking questions towards the end of our panel and get involved in the discussion which we hope to promote.

The topic for this afternoon's panel is a scholar's approach to corporation law. And we are fortunate to have some scholars with …

Herbert Wechsler And The Criminal Law: A Brief Tribute, Harold Edgar

Faculty Scholarship

The great English architect Christopher Wren is buried in his most famous church, St. Paul's London. The inscription on his memorial stone concludes with the words: Lector, si monumentum requiris, circumspice. Reader, if you seek his monument, look around you.

That instruction serves well those who would appraise and honor Herbert Wechsler's contributions to American criminal law. When he joined the Columbia Law School faculty in 1933, this school did not teach criminal law and much of the profession thought the topic was not worth studying.' What fabulous good fortune it was that Herb thought otherwise. Throughout a long and …

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors …

A Legal Giant Is Dead, Henry Paul Monaghan

Faculty Scholarship

Herbert Wechsler died at his home on April 26, 2000. Two days later, the New York Times obituary's headline announced the passing of a "legal giant," a richly merited appellation. Herbert Wechsler was, I believe, the greatest academic figure in the history of Columbia Law School. At the height of his career, Herb stood at the top of three academic fields: criminal law, constitutional law, and federal jurisdiction. His achievements were, moreover, not confined to Columbia, the faculty of which he joined in 1933 after having served as law clerk to Justice Harlan Fiske Stone. From 1944 to 1946, Herb …

Balancing Public Health Against Individual Liberty: The Ethics Of Smoking Regulations, Thaddeus Mason Pope

Faculty Scholarship

Ten years ago, philosopher Robert E. Goodin published "No Smoking: The Ethical Issues." Goodin argued that the liberty of smokers can be justifiably limited for two reasons: to prevent harm to third persons and to prevent harm to smokers themselves under circumstances which make their decision to smoke substantially non-autonomous. In this article Thaddeus Pope reexamines the harm principle and the soft paternalism principle in light of more recent legal developments, gives them additional content, and carefully demarcates the justificatory scope of each. Pope also defines and defends a third liberty-limiting principle, hard paternalism, arguing that the liberty of smokers …

Lawyer Role, Agency Law, And The Characterization Officer Of The Court , James A. Cohen

Faculty Scholarship

The law of agency has governed American lawyers since before the Revolution, but recent scholarship about legal ethics and professional role almost entirely ignores it. Most commentators would concede that attorneys are agents, but would quickly add that the lawyer is also an "officer of the court" who has obligations to seek justice. However, analysis of the phrase "officer of the court" reveals that it has surprisingly little content; it is mostly rhetoric, caused by self-love and self-promotion. What little content it has points to a role of the attorney as agent whose obligations to the court are almost identical …

Informal Aggregation: Procedural And Ethical Implications Of Coordination Among Counsel In Related Lawsuits, Howard M. Erichson

Faculty Scholarship

Even when related claims are not aggregated by any formal procedural mechanism, the lawyers involved in the separate lawsuits often coordinate their efforts. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship. As an ethical matter, the central question is whether a lawyer owes ethical duties to a coordinating lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, Professor Erichson suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection, and the problem inheres in the nature of …

Legal Practice Rights Of Domestic And Foreign Lawyers In The United States , Roger J. Goebel

Faculty Scholarship

In the post-World War II international economy, with its enormous growth in transnational trade and investment, multinational legal practice has become a functional reality. Within the last two decades, the volume of trans-border legal practice has grown enormously in fields such as trade law, international banking and finance, international arbitration and litigation, international contractual and joint venture arrangements, transborder acquisitions and mergers, international antitrust, inter- national tax planning, and foreign investment counselling. Domestic law firms within the leading commercial nations have not only grown substantially in size, often by merger, they have also increasingly created networks of foreign branch offices, …

Pragmatic Conceptualism, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

The Perils Of Public Opinion, Deborah W. Denno

Faculty Scholarship

Justice, Liability, and Blame: Community Views and the Criminal Law (“Justice”) is a rich, creative, and intriguing book with an ambitious goal: to examine the extent to which laypersons' views of justice (their “moral intuitions”) are reflected in current criminal codes. This Article discusses the significance of Justice's approach to understanding law and why the book is an excellent springboard for further research comparing community standards and legal codes. However, this Article particularly emphasizes the perils of incorporating public opinion into the law based upon three major sources: (1) this Article's own study of national and New Jersey demographic and …

Gang Loitering, The Court, And Some Realism About Police Patrol, Debra A. Livingston

Faculty Scholarship

When the Supreme Court voted to review the decision of the Illinois Supreme Court holding Chicago's "gang loitering" ordinance invalid on federal constitutional grounds, it seemed plausible that City of Chicago v Morales would be the occasion for a major statement from the Court on a set of complex issues – issues including not only the nature of the police officer's authority to maintain order in public places, but also the relative roles of politics and judicial decision making in delineating both the limits on this authority and the latitude left to police to employ discretion in its exercise. After …

Dignity And Victimhood, Kent Greenawalt

Faculty Scholarship

If Sandy Kadish has reminded us of limitations of consequentialist approaches to the criminal law and has proposed persuasive resolutions of issues that deontological perspectives reveal, Meir Dan-Cohen has jarred us to rethink fundamental premises about rules in the criminal justice system. His Essay is an example of his ingenuity for unsettling understandings. The Essay reads easily and seems deceptively straightforward, but it is rich in nuance and its themes are complex. This Response identifies the various themes and evaluates their plausibility. I take Professor Dan-Cohen's Essay as a preliminary exploration of a major subject, and I have responded accordingly, …

From Watergate To Generation Next: Opening Remarks, Rory K. Little

Faculty Scholarship

No abstract provided.