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The Relationship Between Yale's Law School And The Central University In The Late Nineteenth Century, Mark Bartholomew Feb 2000

The Relationship Between Yale's Law School And The Central University In The Late Nineteenth Century, Mark Bartholomew

Student Legal History Papers

This paper describes the Yale Law School in the late 1800s. For most of the period, the school's faculty struggled to gain the attention of an unresponsive university administration. At the same time, the faculty pushed for interdisciplinary study that would tie the Law School to the university's other academic departments.


Tribute In Memory Of Herbert Wechsler, Geoffrey C. Hazard Jr. Jan 2000

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

Faculty Scholarship Series

Herbert Wechsler was my teacher at Columbia. He was a model as a
scholar and lawyer throughout my career. He taught my classmates and
me Criminal Law and, in a very demanding seminar, an introduction to
Federal Jurisdiction based on the then paper version of what later became
the great Hart and Wechsler casebook. I also served, not very effectively
I fear, as a research assistant in his work on the Model Penal Code,
particularly addressing the difficult subject, perhaps indeed an opaque
one, of mistake as a defense or amelioration of criminal liability. He was
an illuminating teacher and ...


Representing The Poor And Homeless: A Community-Based Approach, Robert A. Solomon Jan 2000

Representing The Poor And Homeless: A Community-Based Approach, Robert A. Solomon

Faculty Scholarship Series

Several years ago, at a conference on representing the homeless, advocates
were discussing developing suitable housing for single homeless people.
Several people argued against single room occupancy (SRO) units without
bathrooms and cooking facilities. The question was posed as one of human
dignity; our clients should not be subjected to the lowest possible form of
housing. I was fully persuaded by the argument, but for one problem. In New
Haven, Connecticut, in seeking to redevelop Connecticut's largest SRO, we
had interviewed 150 of the 218 occupants. Our clients, a large majority, told
us that they did not want bathrooms ...


Monitoring The Mayor: Will The New Information Technologies Make Local Officials More Responsible?, Robert C. Ellickson Jan 2000

Monitoring The Mayor: Will The New Information Technologies Make Local Officials More Responsible?, Robert C. Ellickson

Faculty Scholarship Series

Our Topic—"The City in the Twenty-first Century"—is truly daunting. In preparing my remarks, I took some solace from the realization that a seminar that I have taught several times has forced me to contemplate how municipal affairs evolve over the centuries. I have named the seminar Urban Legal History: The Development of New Haven. As this title suggests, its focus is on the regulation of the physical development, since its founding in 1638, of the Connecticut city in which my law school is located. The seminar has proven to be exceedingly popular with law students. It enables them ...


Comparative Law And The Same-Sex Marriage Debate: A Step-By-Step Approach Toward State Recognition, William N. Eskridge Jr. Jan 2000

Comparative Law And The Same-Sex Marriage Debate: A Step-By-Step Approach Toward State Recognition, William N. Eskridge Jr.

Faculty Scholarship Series

I have discussed the conservative and progressive critiques of same-sex marriage in prior publications and have maintained that neither progressives nor conservatives have yet produced a convincing response to my argument that the principle of formal equality requires the state to recognize same-sex unions on the same terms as which it recognizes different-sex unions. In this Essay, I not only demonstrate how the events in Vermont and Hawaii link up with those in the Netherlands and Denmark, but I also correlate those events with the broader constitutional and theoretical debates as well. My general thesis is that not only does ...


No Promo Homo: The Sedimentation Of Antigay Discourse And The Channeling Effect Of Judicial Review, William N. Eskridge Jr. Jan 2000

No Promo Homo: The Sedimentation Of Antigay Discourse And The Channeling Effect Of Judicial Review, William N. Eskridge Jr.

Faculty Scholarship Series

Arguments against equal rights for gay men, lesbians, bisexuals, and transgendered people have shifted from, "Those are bad people who do sinful, sick acts," to " A pro gay reform would promote homosexuality." Professor Eskridge's article presents a history of this rhetorical shift, tying it to die rise of a politics of preservation by traditionalists seeking to counter gay people's politics of recognition. Eskridge also shows how modem antigay discourse has become sedimented, as arguments are layered on top of (but never displace) each other. Evaluating the various forms no promo homo arguments can take, he maintains that the ...


Destabilizing Due Process And Evolutive Equal Protection, William N. Eskridge Jr. Jan 2000

Destabilizing Due Process And Evolutive Equal Protection, William N. Eskridge Jr.

Faculty Scholarship Series

One way to think about the relationship between the Due Process and Equal Protection Clauses of the Fourteenth Amendment is to view due process as backward-looking (evaluating a law in light of its historical precedents), and equal protection as forward-looking (evaluating a law in light of its utility for future social projects). Professor Eskridge challenges this contrast. He shows that such a contrast is supported by neither the text and history of the Fourteenth Amendment nor by the Supreme Court's precedents applying the Due Process and Equal Protection Clauses. Due process is just as often destabilizing as equal protection ...


Religious Freedom As If Family Matters, Stephen L. Carter Jan 2000

Religious Freedom As If Family Matters, Stephen L. Carter

Faculty Scholarship Series

The subject of my lecture is parents, religion, and the schools. I will seek to sketch, and partly defend, a controversial proposition about the relationship among the three. My goal is less to persuade than to provoke. I want us all to think about the relationship in ways a little bit different from the mainstream.

Let me begin by telling you a story involving my own family.

My wife and I have two wonderful children. After my book, The Culture of Disbelief, was published in 1993, the publisher sent me on a book tour. One morning, I found myself in ...


Two Functions Of Formalism: In Memory Of Guido Tedeschi, Guido Calabresi Jan 2000

Two Functions Of Formalism: In Memory Of Guido Tedeschi, Guido Calabresi

Faculty Scholarship Series

Some thirty years ago, I gave a lecture on the Italian legal system. It was meant to be an informal explanation, to an American—primarily university—audience, of some aspects of Italian jurisprudence that might seem puzzling to those accustomed to U.S. views of law. In a recent article, Professor Cass Sunstein referred to my unpublished talk, and the editors of The University of Chicago Law Review asked me to send them a copy for citechecking purposes. After reading the essay they decided that it was worth publishing and urged me to let them do so. I agreed. To ...


Hurst Recaptured, Robert W. Gordon Jan 2000

Hurst Recaptured, Robert W. Gordon

Faculty Scholarship Series

Anyone who lived and worked within range of Willard Hurst's benign, if also rather insistent, influence is necessarily somewhat disabled from detached assessment of his legacy. We owe him too much. Not just for the continuous rapid fire of comment, criticism, recommendation, and encouragement that rattled off the famous ancient typewriter; but also for his intellectual and moral example. He set himself long-range projects and finished them; he surveyed large themes and explored them to the bottom. He used his authority to try to get us both to read more broadly and get down into the details. We responded ...


Tribute To Joseph Goldstein, Anthony Townsend Kronman Jan 2000

Tribute To Joseph Goldstein, Anthony Townsend Kronman

Faculty Scholarship Series

Good afternoon and welcome. We are here to remember and celebrate the life of a good friend who happened also to be a great man. We shall try with our words to express our friendship for Joe and do justice to his greatness. It goes without saying that we shall fail in the attempt. Our words will fall short of the facts, and can never reach the man himself. That is something we must accept. But Joe is gone, and all we now possess of him are the words we use to remember and describe him. That is something we ...


Property And Expropriation: Themes And Variations In American Law, Carol M. Rose Jan 2000

Property And Expropriation: Themes And Variations In American Law, Carol M. Rose

Faculty Scholarship Series

Most of us think that as a nation, the United States is and always has been very conscious of property. The most legendary of our revolutionary slogans was "no taxation without representation," which is fundamentally about taking property without consent. Almost from its inception, our Constitution has included a clause protecting property against takings for public purposes without compensation, whereas some other countries' constitutions hedge their property clauses with flexible language to take into account the ''public interest," or—as in the case of our Canadian neighbors—dispense with constitutional property protection altogether.

We have received a particularly large dose ...


Left Brain, Right Brain And History In The New Law And Economics Of Property, Carol M. Rose Jan 2000

Left Brain, Right Brain And History In The New Law And Economics Of Property, Carol M. Rose

Faculty Scholarship Series

These two excellent papers reflect a kind of yin and yang of property: Michael Heller is in a quest to unlock the "left-brain" rational categories by which we organize our thinking about property; Peter Huang searches for the grounds of our deep "right-brain" emotional responses to property. Both papers are written in an analytic mode, and I have very little quarrel with either on that count. Following a few comments on the major points in each, however, I will argue that in the case of both left and right brain—rational categories and emotional response—the analytic power of the ...


Response To Commentators, Robert C. Post Jan 2000

Response To Commentators, Robert C. Post

Faculty Scholarship Series

Academic life contains few pleasures more intense than writing for an audience as astute and as generous as the four commentators to my Brennan Lecture. As this Response demonstrates, I have learned much from them, particularly regarding the logical relationship between the dominant conception and the sociological account. What I chiefly wish to stress, however, is my deepest gratitude for their constructive and discerning insights. Tom Grey, for example, makes an excellent and useful point about the potential tension between the rule of law and what I call in my Lecture the "sociological approach."' Grey is entirely correct to stress ...


Life's Work, Vicki Schultz Jan 2000

Life's Work, Vicki Schultz

Faculty Scholarship Series

In this Essay, Professor Schultz develops a vision of social justice grounded in the redistribution and restructuring of paid work. Work is a site of deep self-formation offering rich opportunities for human flourishing or devastation. Although society has been slow to understand the significance of paid work to women, research suggests that women who work for a living are better off than other women in many ways. Currently, however, transformations in the structure of work are increasing insecurity and deepening inequality for all but those at the top; many once privileged workers now face conditions akin to those that women ...


The Discretionary Function Exception In The Second Circuit, Peter H. Schuck, James J. Park Jan 2000

The Discretionary Function Exception In The Second Circuit, Peter H. Schuck, James J. Park

Faculty Scholarship Series

In a society governed by the rule of law, what is the responsibility of a government to rectify its own errors when those errors injure its citizens? In the Anglo-American legal tradition, this question has been debated at least since the Magna Carta, and it remains a vexed one. The answer to this question is especially elusive with respect to governmentinflicted personal injuries remediable only with money damages, a form of liability rule that has always been subject to broad areas of immunity for government, for its officials, and for both. In the United States, federal and state laws have ...


Discrimination In The Eyes Of The Law: How “Color Blindness” Discourse Disrupts And Rationalizes Social Stratification, Reva B. Siegel Jan 2000

Discrimination In The Eyes Of The Law: How “Color Blindness” Discourse Disrupts And Rationalizes Social Stratification, Reva B. Siegel

Faculty Scholarship Series

I am quite pleased to have this opportunity to comment on Robert Post's provocative Lecture, Prejudicial Appearances. Post's effort to distinguish the "dominant conception" of antidiscrimination law from what he presents as a "sociological" account of the field intersects in striking ways with my own efforts to analyze status relations and their disestablishment from a sociohistorical vantage point. In this Response, I would like to identify some key points of similarity and difference in our accounts, with a view to furthering consideration of what we might learn from a sociological approach to the field.


Statutory Interpretation, Capture, And Tort Law: The Regulatory Compliance Defense, Alan Schwartz Jan 2000

Statutory Interpretation, Capture, And Tort Law: The Regulatory Compliance Defense, Alan Schwartz

Faculty Scholarship Series

The regulatory compliance defense holds firms liable whose products or product warnings fail to satisfy federal regulatory standards, but does not exculpate firms that comply. Rather, compliance is relevant evidence for a jury to consider in a products liability action. This article argues that the defense should exculpate compliant firms as a matter of law. A Congress that thought about the matter would prefer this judicial construction of an unclear safety statute. To defend this view, the article argues that a legislature can have intentions in a normatively meaningful sense, that claims that a Congress or its agencies are captured ...


Karl Llewellyn And The Origins Of Contract Theory, Alan Schwartz Jan 2000

Karl Llewellyn And The Origins Of Contract Theory, Alan Schwartz

Faculty Scholarship Series

Karl Llewellyn was America's leading legal realist, academic law reformer, and contract law theorist. There are extensive analyses of Llewellyn's performance as a realist and reformer, but his contracts scholarship, written between 1925 and 1940, has not been seriously analyzed. 1 As an example, William Twining's famous study answered the question of what of Llewellyn should be read today as follows: "A number of essays on specific topics are still of value, and this is particularly the case with most of the articles on contract and commercial law of the middle period." But Twining did not analyze ...


Fear And Fairness In The City: Criminal Enforcement And Community Perceptions Of Fairness, Richard R.W. Brooks Jan 2000

Fear And Fairness In The City: Criminal Enforcement And Community Perceptions Of Fairness, Richard R.W. Brooks

Faculty Scholarship Series

Blacks in central city neighborhoods are more likely than any other group to perceive crime as a problem. They have the highest rates of violent crimes victimization and they are seven times more likely to be murdered than whites. Grim statistics like these, along with impassioned personal accounts of violent encounters and heroic daily efforts to avoid such encounters, have led race and criminal law scholars, such as Randall Kennedy, to express a seemingly natural though unconventional claim: Frustrated and overwhelmed by gangs, drugs and crime, blacks in high-crime neighborhoods welcome disproportionately tough criminal sanctions and expanded police discretion. This ...


Can Law Schools Teach Students To Do Good? Legal Education And The Future Of Legal Services For The Poor, Stephen Wizner Jan 2000

Can Law Schools Teach Students To Do Good? Legal Education And The Future Of Legal Services For The Poor, Stephen Wizner

Faculty Scholarship Series

Is it possible for law schools to teach students to do good? Should they try? Do law schools have a role to play in addressing the crisis in legal services for the poor? If so, what role?

Our society is one in which the great majority of citizens of modest means cannot afford the services of a lawyer in resolving their legal problems. A decade ago a national survey found that approximately eighty percent of the legal problems of the poor were handled without legal assistance. Surely, recent reductions and restrictions in government-funded legal services can only have made the ...


Building A Law-Abiding Society: Taking Public Views About Morality And The Legitimacy Of Legal Authorities Into Account When Formulating Substantive Law, Tom R. Tyler, John M. Darley Jan 2000

Building A Law-Abiding Society: Taking Public Views About Morality And The Legitimacy Of Legal Authorities Into Account When Formulating Substantive Law, Tom R. Tyler, John M. Darley

Faculty Scholarship Series

This Article argues that psychologists can make an important and fundamental contribution to the law by articulating the possibility of a law-abiding society, and by showing how such a society can be created and maintained. Such a contribution involves the application of psychological models of social values to our conceptions of how to effectively maintain the rule of law.


What Use Is John Rawls’ Theory Of Justice To Public International Law?, Lea Brilmayer Jan 2000

What Use Is John Rawls’ Theory Of Justice To Public International Law?, Lea Brilmayer

Faculty Scholarship Series

For the past thirty years lawyers and philosophers have from time to time wondered how to apply John Rawls' Theory of Justice to international relations. Now John Rawls has tried to do so himself, making the question even more pressing for those of us who care about international law. Rawls' own effort, and its deficiencies, make clear that it would be a bad idea to apply the ideas of his Theory of Justice to international relations. International lawyers and statesmen should leave Rawls' books on the shelf for philosophers.


America: The World’S Mediator?, Lea Brilmayer Jan 2000

America: The World’S Mediator?, Lea Brilmayer

Faculty Scholarship Series

The end of the Cold War brought about a substantial restructuring
ofmany aspects of the international political system,
including its method for managing disputes. Under the Cold
War's regime of bi-polarity, typically one of the "superpowers"
would line up behind one participant to the dispute and the
other "superpower" would line up behind the other. Bi-polarity
frustrated dispute resolution because each of the disputing
states would then have access to economic and military support,
to the friendship of a permanent member of the Security Council,
and to a network of alliances. The result, most commonly,
was deadlock. The end ...


Commentaries On Lea Brilmayer, Secession And Self-Determination: A Territorial Interpretation: One Decade Later, Lea Brilmayer Jan 2000

Commentaries On Lea Brilmayer, Secession And Self-Determination: A Territorial Interpretation: One Decade Later, Lea Brilmayer

Faculty Scholarship Series

There was little reason to think in 1990 that secession might turn out to
be an important topic. Since Secession and Self-Determination was published
in The Yale Journal ofInternational Law, however, the Baltic states left the
Soviet Union and the rest of the Soviet Union crumbled. Yugoslavia and
Czechoslovakia fractured. Eritrea asserted its independence from Ethiopia
after military success and then a democratic referendum. Quebec's separatist
aspirations from Canada became front page news (along with the comparable
aspirations of various of the indigenous peoples of Quebec). East Timor
succeeded in its drive for independence. Prior to 1990, the only ...


Can Law Schools And Big Firms Be Friends?, Dennis E. Curtis Jan 2000

Can Law Schools And Big Firms Be Friends?, Dennis E. Curtis

Faculty Scholarship Series

My recent focus has been upon current students and new associates and their expectations about and experiences in large firms. I have taught both classes and research seminars on the profession, in which students examine how their colleagues make career plans. Through these seminars, I have gained some understanding of law firm life, including the willingness of law firms to support pro bono projects, the experiences of relatively new associates, and many law firms' attitudes about the work expected from young associates. From such research and from the growing wealth of materials about law practice, I have begun to develop ...


The Uncertain Career Of Executive Power, Ruth Wedgwood Jan 2000

The Uncertain Career Of Executive Power, Ruth Wedgwood

Faculty Scholarship Series

Essays in constitutional law are often about something more than the historical texts at hand. Professor Michael Glennon's 1988 essay—Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright?—was a heartfelt effort to challenge the existence of an independent foreign affairs power in the Presidency, especially in the deployment and use of military force. Its argument was shaped around the controversy of the day—the effort by the Reagan White House in "Iran Contra" to deliver covert aid to anti-communist rebels in Nicaragua despite Congress's bar to American involvement. For any earthly observer, a ...


Cyber-Nations, Ruth Wedgwood Jan 2000

Cyber-Nations, Ruth Wedgwood

Faculty Scholarship Series

The cultural project of nationalism embraces modem technology—the ability to broadcast at a distance the resonant symbols of power and purpose, permitting governments to address citizens remote from the center and detached from the state's administrative representatives. The creed of shared burden and ambitions, the exhortations of a charismatic leader, the iconography of flag and battle, the claim of danger and challenge—the central symbols of nationalism—are brought forward through technology.

But the new technology of the Internet allows a more whimsical speculation for the utopians among us. If a liberal constitutional state depends on shared commitment ...


Augusto Pinochet And International Law, Ruth Wedgwood Jan 2000

Augusto Pinochet And International Law, Ruth Wedgwood

Faculty Scholarship Series

This article explores the interplay between historicized law and normative standards of human rights law by considering how the House of Lords dealt with the question of General Pinochet's immunity. By selecting a normative account of state power, the law lords aligned themselves with evolving standards of humanitarian law, articulated in, for example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the law of war, and the Geneva Conventions, and the recent intervention in Kosovo. Although appealing, the normative position is far from unassailable, from both principled and pragmatic angles. The author questions, for ...


Elected Judges And The Death Penalty In Texas: Why Full Habeas Corpus Review By Independent Federal Judges Is Indispensable To Protecting Constitutional Rights, Stephen B. Bright Jan 2000

Elected Judges And The Death Penalty In Texas: Why Full Habeas Corpus Review By Independent Federal Judges Is Indispensable To Protecting Constitutional Rights, Stephen B. Bright

Faculty Scholarship Series

Carrying out over two hundred executions in the last twenty years, Texas has dramatically demonstrated that the Bill of Rights-particularly, the most fundamental right, the right to counsel-cannot be left in the hands of partisan elected judges. The Texas judiciary has responded to the clamor for executions by processing capital cases in assembly-line fashion with little or no regard for the fairness and integrity of the process. In doing so, it has shown the need for full habeas corpus review by independent, life-tenured federal judges. However, the once "Great Writ" of habeas corpus barely survives the restrictions put on it ...