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Articles 31 - 49 of 49
Full-Text Articles in Law
Can International Refugee Law Be Made Relevant Again?, James C. Hathaway
Can International Refugee Law Be Made Relevant Again?, James C. Hathaway
Articles
Ironic though it may seem, I believe that the present breakdown in the authority of international refugee law is attributable to its failure explicitly to accommodate the reasonable preoccupations of governments in the countries to which refugees flee. International refugee law is part of a system of state self-regulation. It will therefore be respected only to the extent that receiving states believe that it fairly reconciles humanitarian objectives to their national interests. In contrast, refugee law arbitrarily assigns full legal responsibility for protection to whatever state asylum-seekers are able to reach. It is a peremptory regime. Apart from the right …
Ted St. Antoine: An Appreciation, Terrance Sandalow
Ted St. Antoine: An Appreciation, Terrance Sandalow
Articles
Ted's skills as a negotiator and mediator and the soundness of his judgment played a vitally important role not only in bringing the issues to a happy conclusion, but in doing so in a way that held the faculty together during a difficult time. Those qualities, together with universal respect for his integrity and confidence that he would not pursue an agenda different from its own, have repeatedly led the faculty to turn to Ted, initially to become its Dean and later to handle a variety of other sensitive assignments.
The Death Of A Friendly Critic, James J. White
The Death Of A Friendly Critic, James J. White
Articles
Our colleague, Andy Watson, died April 2. Andy was one of the handful of preeminent law professor/psychiatrists. In that role he wrote dozens of articles and several important books, including Psychiatry for Lawyers, a widely used text. I do not write to remind us of his scholarly work, of his strength as a clinical and classroom teacher, or of his prominence as a forensic psychiatrist. I write to remind us of his powerful criticism of our teaching. On the occasion of his death, it is right to recognize his influence on the law school curriculum and to consider whether his …
Why Do Juries Get A Bum Rap: Reflections On The Work Of Valerie Hans, Richard O. Lempert
Why Do Juries Get A Bum Rap: Reflections On The Work Of Valerie Hans, Richard O. Lempert
Articles
The paper by Professor Valerie Hans that I have been asked to comment on examines the widespread expectation that jurors are prepared to hold businesses responsible in tort actions when they would not hold individual actors similarly responsible.1 Two reasons are commonly offered for this expectation. The first is that jurors naturally sympathize with individuals (like themselves) when people sue businesses, either because they identify with the plaintiffs as individuals or because they hold antibusiness attitudes. The second is that because businesses are often wealthy, a "deep pockets" effect exists such that jurors in negligence cases will find for undeserving …
A Populist Critique Of Direct Democracy, Sherman J. Clark
A Populist Critique Of Direct Democracy, Sherman J. Clark
Articles
It is often assumed that direct democratic processes - referenda and initiatives - offer the people a chance to speak more clearly than is possible through representative processes. Courts, commentators, and political leaders have defended or described direct democratic outcomes as the voice of the "people themselves." Because plebiscites allow the people to speak directly, without the potential distortion inherent in representation, they seem ideally responsive to popular will. Indeed, even critics of direct democracy appear to grant as much. Critics are quick to point out, of course, that actual plebiscites often fall far short of the ideal. Uneven voter …
Talking About Religion In The Language Of The Law: Impossible But Necessary, James Boyd White
Talking About Religion In The Language Of The Law: Impossible But Necessary, James Boyd White
Articles
In speaking to this conference about religion and law I am in a decidedly peculiar position, for it may be that every one of you has thought longer and harder about the relation between these two forms of life than I have. When Scott Idleman first asked me to talk to you, I explained that I was no expert, to put it mildly, and that the most that I could offer would be the reflections of a neophyte. He said that this was fine-perhaps he was just desperate for a speaker; perhaps he thought that it might be helpful to …
Response To Judging Religion By Winnifred Fallers Sullivan (Symposium: Religion And The Judicial Process: Legal, Ethical, And Empirical Dimensions), James Boyd White
Response To Judging Religion By Winnifred Fallers Sullivan (Symposium: Religion And The Judicial Process: Legal, Ethical, And Empirical Dimensions), James Boyd White
Articles
In her paper Professor Sullivan sets forth an admirable ideal: that we in the law should talk about religion as a distinctive human activity, without either engaging in theology ourselves or erasing what is important about religion. We: should, in her words, learn to acknowledge religion without establishing it. For this activity, as she has also argued in Paying the Words Extra, the discipline of the history of religion can serve as a model, for there too people strive to reflect what is distinctive about religion without committing themselves to the validity of a particular theology or set of religious …
Notes From The Editorial Advisory Board, James Boyd White
Notes From The Editorial Advisory Board, James Boyd White
Articles
The tenth anniversary of this Journal is an occasion not only for celebrating its remarkable achievements, but also for thinking again about the nature and premises of the work it reflects. One way to begin might be with its two central terms, "law" and "humanities" (or the obvious alternative to the second, "literature").
The (Cloudy) Future Of Class Actions, Edward H. Cooper
The (Cloudy) Future Of Class Actions, Edward H. Cooper
Articles
The past, both proximate and remote, is often consulted in attempts to predict the future. Of course extrapolation from past to future is at best an uncertain art. Extrapolation, however, is not the only problem. Lessons from the recent past are distorted by lack of perspective. Lessons from the distant past are distorted by distance. The first step is to choose which of the competing pasts to consult. Selfishly, I choose to consult the recent past, as it continues through the present and on into the near-term future, from the perspective of the Advisory Committee on the Federal Rules of …
Civil Rule 53: An Enabling Act Challenge (Federal Practice And Procedure Symposiusm Honoring Charles Alan Wright), Edward H. Cooper
Civil Rule 53: An Enabling Act Challenge (Federal Practice And Procedure Symposiusm Honoring Charles Alan Wright), Edward H. Cooper
Articles
The Judicial Conference of the United States is charged by statute to "carry on a continuous study of the operation and effect of the general rules of practice and procedure," recommending desirable changes to the Supreme Court.' The Rules Enabling Act,2 which describes the Supreme Court's role, further provides that the Judicial Conference is to be assisted in this task by a "standing committee on rules of practice, procedure, and evidence" ;3 the standing committee in turn reviews "each recommendation of any other committees" appointed to advise it.4
Up From Individualism (The Brennan Center Symposium On Constitutional Law)." , Donald J. Herzog
Up From Individualism (The Brennan Center Symposium On Constitutional Law)." , Donald J. Herzog
Articles
I was sitting, ruefully contemplating the dilemmas of being a commentator, wondering whether I had the effrontery to rise and offer a dreadful confession: the first time I encountered the countermajoritarian difficulty, I didn't bite. I didn't say, "Wow, that's a giant problem." I didn't immediately start casting about for ingenious ways to solve or dissolve it. I just shrugged. Now I don't think that's because my commitments to either democracy or constitutionalism are somehow faulty or suspect. Nor do I think it's that they obviously cohere. It's rather that the framing, "look, these nine unelected characters can strike down …
We Could Pass A Law...What Might Happen If Contingent Legal Fees Were Banned, Samuel R. Gross
We Could Pass A Law...What Might Happen If Contingent Legal Fees Were Banned, Samuel R. Gross
Articles
This is an exercise in fantasy. My task is to imagine what would happen if we simply abolished the institution of the contingent fee by statute. I cannot justify that task on grounds of urgency. Contingent fees are not about to be abolished, and they probably.are not going to be seriously restricted. My hope is that the exercise will be amusing in itself, and that in the process we might learn something about contingent fees as we now use them.
Some Examples Of Using Legal Relations Language In The Legal Domain: Applied Deontic Logic, Layman E. Allen
Some Examples Of Using Legal Relations Language In The Legal Domain: Applied Deontic Logic, Layman E. Allen
Articles
The fundamental concept of the LEGAL RELATIONS Language (LRL) is the recursively-defined notion of LEGAL RELATION (LR). As LR is defined here, there is an infinite number of different LEGAL RELATIONS, and LRL is a language for precisely and completely describing each of those infinite number of dfferent LEGAL RELATIONS. With its robust collection of dfferent names, one for each of the different LEGAL RELATIONS, LRL provides adequate vocabulary for (1) describing every possible legal state of affairs, (2) accounting for every possible change from one legal state of affairs to another, (3) representing every possible legal rule, and (4) …
Economic Analysis Of Evidentiary Law: An Underused Tool, An Underplowed Field (Symposium: The Economics Of Evidentiary Law), Richard D. Friedman
Economic Analysis Of Evidentiary Law: An Underused Tool, An Underplowed Field (Symposium: The Economics Of Evidentiary Law), Richard D. Friedman
Articles
The law and economics movement has had a major impact on many areas of law, but rather little on the law of evidence. This is not to say that there have been no attempts to analyze evidentiary issues through an economic lens,' but such efforts are far more scattered in evidence than in other legal fields, including the closely related one of civil procedure.2 Believing that economics has value for evidentiary analysis, I suggested to the Executive Committee and Advisory Board of the Evidence Section of the Association of American Law Schools ("AALS"), when I was chairman of the section, …
Built On Lies: Preliminary Reflections On Evidence Law As An Autopoetic System, Richard O. Lempert
Built On Lies: Preliminary Reflections On Evidence Law As An Autopoetic System, Richard O. Lempert
Articles
This Symposium on Truth and Its Rivals seems most concerned with what one might think of as the "output" side of evidence law that is, whether the rules of evidence enhance the likelihood that trial verdicts will capture the true state of the matter giving rise to the litigation. From this perspective, the legitimate rivals to truth are values that may justify decisions that eclipse the truth. The most obvious examples are rules of privilege, which allow probative information to remain concealed even where it is essential to accurate fact finding.
Upstream Patents = Downstream Bottlenecks, Rebecca S. Eisenberg, Michael A. Heller
Upstream Patents = Downstream Bottlenecks, Rebecca S. Eisenberg, Michael A. Heller
Articles
Thirty years ago in Science, Garrett Hardin introduced the metaphor "tragedy of the commons" to help explain overpopulation, air pollution, and species extinction. People often overuse resources they own in common because they have no incentive to conserve. Today, Hardin's metaphor is central to debates in economics, law, and science and powerful justification for privatizing commons property. While the metaphor highlights the cost of overuse when governments allow too many people to use a scarce resource, it misses the possibility of underuse when governments give too many people rights to exclude others. Privatization can solve one tragedy, but cause another.
Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman
Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman
Articles
In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the …
Confrontation: The Search For Basic Principles, Richard D. Friedman
Confrontation: The Search For Basic Principles, Richard D. Friedman
Articles
The Sixth Amendment to the Constitution guarantees the accused in a criminal prosecution the right "to be confronted with the Witnesses against him."' The Confrontation Clause clearly applies to those witnesses who testify against the accused at trial. Moreover, it is clear enough that confrontation ordinarily includes the accused's right to have those witnesses brought "face-toface," in the time-honored phrase, when they testify.2 But confrontation is much more than this "face-to-face" right. It also comprehends the right to have witnesses give their testimony under oath and to subject them to crossexamination. 3 Indeed, the Supreme Court has treated the accused's …
Injured Women Before Common Law Courts, 1860-1930, Margo Schlanger
Injured Women Before Common Law Courts, 1860-1930, Margo Schlanger
Articles
How did early American tort law treat women? How were they expected to behave, and how were others expected to behave towards them? What gender differences mattered, and how did courts deal with those differences? These are the issues this Article explores. My aim is to illuminate the common law of torts and its relation to and with ideas about gender difference, by focusing on three sets of cases involving injured women, spanning the time between approximately 1860 and 1930. My conclusions run counter to two approaches scholars have frequently taken in analyzing gender and the common law of torts. …