Law Commons^™

In Memoriam: Justice Lewis F. Powell, Jr. - A Tribute, Kenneth F. Ripple

Journal Articles

In remembering Justice Powell, my memory invariably recalls three distinct images from the years I spent at the Supreme Court. Two of these memories are from my own work with him. The other is from my observation of him on the bench. In the days since his death this past autumn, all three have sparked a great deal of reflection about his enduring contribution to our jurisprudence and to our profession.

The Erie Doctrine Revisited: How A Conflicts Perspective Can Aid The Analysis, Joseph P. Bauer

Journal Articles

I have taught Civil Procedure for the past twenty-five years. Having returned to teaching Conflict of Laws last year, after not having taught that course since the mid-1980s, I was interested in re-examining the Erie doctrine from the vantage point of both of these subject areas. My goal was to see whether a combination of learning from these two related disciplines would introduce additional coherence into the analysis of this topic.

In one sense, the Erie doctrine and traditional choice of law determinations present analogous questions, since they both involve making a selection between competing legal rules. Choice of law …

Legal Writing In The New Millennium: Lessons From A Special Teacher And A "Special Classroom", Kenneth F. Ripple

Journal Articles

After receiving the invitation to address this conference, I found my thoughts often returning to my own education in legal writing. As I recall, my legal writing experience in law school was not a very intensive—or positive—one. As was quite typical in that era (almost thirty-three years ago), the program at my law school was not very extensive: we wrote a memorandum of law and a brief under the guidance of a graduate law student.

My real legal writing education took place in the study of the Chief Justice of the United States. For the better part of five years, …

Covenant And Contract, Steven Nock, Margaret F. Brinig

Journal Articles

In this article we ask, "What distinguishes a covenant from a mere contract, and what role does this distinction play for natural law?" Both of us have thought substantially about covenant over the past several years. The concept of covenant comes to us originally from religious sources, so we have paid explicit attention to what the Bible and organized religion have to say about covenant. We have also drawn from our own disciplines of law, economics, and sociology as they explain or draw from the initial concepts.

Covenant is a concept that takes us beyond contract. Indeed, the idea that …

What Is The Common Good, And Why Does It Concern The Client's Lawyer?, John M. Finnis

Journal Articles

Why is anything of real concern to any of us? Because, besides our simply emotional motives, we have reasons for action (which may be supported or opposed by our emotions). What are reasons for action? Some are instrumental, means to further ends: I have reason to start reading this paper to you, and you had reason to come back into the room to hear it. What reasons? Well, doing so is my contribution to this symposium's reflection on its subject-matter. That reflection, in turn, is intended to be instrumental in promoting a wider and deeper understanding of an important set …

Plea Bargaining And The Criminal Defendant's Obligation To Plead Guilty, Gerard V. Bradley

Journal Articles

One criticism of plea bargaining holds that: "So long as defendants routinely expect to receive some form of sentencing consideration in exchange for an admission of guilt, the essence of a system of bargain justice is present."

Taken as a criticism ― that "bargain justice" is defective justice and that the "routine" upon which it depends should be significantly reduced, or eliminated ― this view is quite mistaken. On the assumption (which I believe to be true, but for which I do not argue here) that a large majority of the criminally accused are in reality guilty, many ― and …

Retribution And The Secondary Aims Of Punishment, Gerard V. Bradley

Journal Articles

Punishing criminals involves more than visiting unwelcome experiences–the rack, the gallows, confinement, sitting in a corner–upon them. Privations such as these constitute the behavioral substratum, the raw material of punishment. But behaviors such as confinement become the acts that they are, including acts of punishment by confinement, according to the justifying aim(s) which suffuse(s) the behavior. For behaviors such as confinement are ambiguous; limiting another's freedom of movement may be constitutive of a number of different human acts, including quarantine, kidnapping, institutionalization, and imprisonment for crime. Same behavior, different acts. Each of the ends of punishment shapes privations imposed upon …

Retribution: Punishment's Formative Aim, John M. Finnis

Journal Articles

This Article explores the theoretical underinnings of punishment, in light of statements made about punishment in the works of Friedrich Nietzsche.

Parental Rights And The Ugly Duckling, Margaret F. Brinig, F. H. Buckley

Journal Articles

Hans Christian Andersen's "The Ugly Duckling" is best remembered for its moral, "To be born in a duck's nest, in a farmyard, is of no consequence to a bird, if it is hatched from a swan's egg." Having read and thought about this story many times, we should like to suggest another, less heart-warming, interpretation. The story of the Ugly Duckling, that most resilient of cygnets, masks the tragedy of children who suffer abuse. Its message, that personal spirit will triumph when a child grows up, misrepresents the experience of many victimized children. If we wait for the child to …

Towering Figures, Enigmas, And Responsive Communities In American Legal Ethics, Thomas L. Shaffer

Journal Articles

The first thing Niebuhr and Guttman are telling us to do is to look around and figure out what is going on around us. With that in mind, it has seemed to me that, at the simplest, a lawyer (or a journalist) functions in at least four communities, any one of which might be a community to talk about lawyers' moral questions in.

My inquiry, then, is an inquiry in communitarian legal ethics, using a Guttman-Niebuhr focus on responsibility. I infer a further question about communities of moral discernment—that is, not only where a modern lawyer is responsible but also …

"Meet My Mentor": A Collection Of Personal Reminiscences, Frank G. Houdek, Edmund P. Edmonds

Journal Articles

Contributors describe the mentoring they received as law librarians. Individually the pieces offer fascinating glimpses of individuals and relationships. Collectively, they demonstrate how important - and how varied - the process of mentoring has been and continues to be for the growth and evolution of the profession.

The Constitutional Dilemma Of Litigation Under The Independent Counsel System, William K. Kelley

Journal Articles

The independent counsel system as established by the Ethics in Government Act of 1978 has put different components of the executive branch, such as the President and Department of Justice in the position of litigating against a special counsel. Litigation is not only a bad idea, it also gives rise to a serious constitutional dilemma. It either violates Article III because there is insufficient adversity to support litigation between the parties. Or it violates Article II, by preventing the President and his subordinates from controlling central functions of the executive branch, and places the independent counsel, an inferior officer, in …

Tribute To The Honorable Richard Sheppard Arnold For His Service As Chief Judge Of The United States Court Of Appeals For The Eighth Circuit, Richard W. Garnett

Journal Articles

The Honorable Richard S. Arnold was appointed by President Carter in October 1978 to the District Bench for the Eastern and Western Districts of Arkansas and elevated to the United States Court of Appeals for the Eighth Circuit in 1980, where he serves with his brother, the Honorable Morris S. Arnold. Judge Richard Arnold served as Chief Judge of the Eighth Circuit from January 8, 1992 to April 17, 1998. A graduate of Yale College and Harvard Law School, Judge Arnold clerked for Justice William Brennan of the United States Supreme Court from 1960-1961. He was an associate at Covington …

Education Reform At The Crossroads: Politics, The Constitution, And The Battle Over School Choice, Richard W. Garnett

Journal Articles

The "Education Reform at the Crossroads" Conference's four panels tackled the education-reform and school-choice questions from a variety of perspectives—one panel, led by Cleveland's indefatigable councilwoman and education revolutionary Ms. Fannie Lewis, explored the history and increasingly visible politics of the school-choice debate—in particular, the marked increase in support for school choice among African Americans"—while another group focused on the constitutionality of including religious schools in voucher programs and on the historical connection between anti-Catholic nativism and the common-school movement. A third panel discussed framing school-choice as a "civil rights issue" and the fourth—which included political scientist and education researcher …

Lost Fidelities, Barry Cushman

Journal Articles

Owen Roberts was accused of a variety of things in 1937, but “fidelity” was not among them. Justice Harlan Fiske Stone and Professor Felix Frankfurter were among many who accused Roberts of performing, as Frankfurter put it, a jurisprudential “somersault” “incapable of being attributed to a single factor relevant to the professed judicial process.” To Frankfurter, it was “all painful beyond words,” and gave him “a sickening feeling which is aroused when moral standards are adulterated in a convent.” Yet when Roberts announced his retirement from the Court eight years later, Chief Justice Stone, along with now-Justices Frankfurter and Robert …

The Community Reinvestment Act: Questionable Premises And Perverse Incentives, Vincent D. Rougeau, Keith N. Hylton

Journal Articles

Having just passed the twentieth anniversary of the enactment of the Community Reinvestment Act ("CRA" or "Act"), this is an appropriate time to take stock of the effectiveness of the legislation and to consider whether it continues to be useful as a tool for addressing the problems of neighborhood decline and discrimination in the lending market. Although discrimination in lending and the decline of certain inner-city neighborhoods is a problem that the CRA has not been able to solve, most observers would agree that the situation has improved since the mid-1970s. In particular, there has been notable progress toward the …

Should A Christian Lawyer Sign Up For Simon's Practice Of Justice?, Thomas L. Shaffer

Journal Articles

In The Practice of Justice, Professor William H. Simon describes justice in a way that differs from the way the Bible describes justice. The big difference is not so much what justice requires (although there is some difference there) as (i) how people decide what justice requires, and (ii) who the "people" are who decide what justice requires. Some of us Christians claim to understand "justice" as the Bible understands it. It may make a difference that, for biblical people, "justice" is righteousness, and righteousness, the Torah teaches, and Rabbi Hillel teaches, and Rabbi Jesus teaches, is practice following upon …

The Icc's New Legal Landscape: The Need To Expand U.S. Domestic Jurisdiction To Prosecute Genocide, War Crimes And Crimes Against Humanity, Douglass Cassel

Journal Articles

The United States was one of only seven nations to vote against the treaty. The ensuing debate within the United States has properly focused on whether the United States can and should ratify the treaty or, if not, whether as a non-party the United States should support or oppose the new court. Largely overlooked, however, are two separate but related questions: (1) should the existing, incomplete jurisdiction of U.S. courts over crimes within the ICC Statute be expanded to ensure that such crimes may also be prosecuted in U.S. courts, under universal jurisdiction or other bases allowed by international law?; …

The Rome Treaty For An International Criminal Court: A Flawed But Essential First Step, Douglass Cassel

Journal Articles

Last summer more than 150 UN member states met in Rome to negotiate a treaty to establish a permanent international criminal court. Following years of preparatory meetings in New York and five weeks of negotiation in Rome, they voted 120 to seven, with twenty-one abstentions, for a treaty to establish an International Criminal Court (ICC) to hear future cases of genocide, serious war crimes and crimes against humanity. Most of the world's democracies-western and central Europe together with countries like Argentina, Australia, Canada, Costa Rica, South Africa and South Korea-supported the ICC. Only two democracies-the U.S. and Israel-voted against, thereby …

Do Agency Employees Have A Right To Union Representation When Questioned By An Oig Investigator? An Analysis Of Nasa V. Flra, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case NASA v. Federal Labor Relations Authority, 527 U.S. 229 (1999). The author expected the case to raise the question of whether the Office of Inspector General within a federal agency is acting as a representative of the agency when it conducts investigatory interviews of agency employees, so as to trigger the employee's right to union representation.

In Memoriam: Lord Lowry Of Crossgar (1919-1999): A Tribute, John Eric Smithburn

Journal Articles

In the Summer of 1985, I participated in a program in London on international judicial education, sponsored by the Judicial Administration Division of the American Bar Association. The keynote speaker for the program was Robert Lowry, The Lord Chief Justice of Northern Ireland. Lord Lowry noted that there was very little judicial training in Britain at the time and that before the 1960s judicial education didn't exist in Britain. In his address, Lord Lowry boldly advocated compulsory judicial education courses for all judges through the Judicial Studies Board. Our mutual interest in the judiciary and the education of judges began …

Meet My Mentors -- Janet Wallin And Caroline Heriot, Edmund P. Edmonds

Journal Articles

In this article, Dean Ed Edmonds describes his relationship with two people who mentored him in his career as a legal librarian.