Law Commons^™

Final Justice, Richard W. Garnett

Journal Articles

Richard Garnett reviews Stuart Banner, The Death Penalty: An American History (2002) & Franklin E. Zimring, The Contradictions of American Capital Punishment (2003).

Illustrating A Behaviorally Informed Approach To Antitrust Law: The Case Of Predatory Pricing, Avishalom Tor

Journal Articles

One of the core assumptions of the traditional economic approach to antitrust law is that competitors are perfectly rational, profit-maximizing, decision makers. Sometimes, this assumption serves as a useful simplification of business behavior, providing an effective foundation for antitrust doctrine. At other times, however, assuming strictly rational behavior on the part of competitors is not “approximately right” but, instead, “perfectly wrong.” In these latter cases, the reliance on the perfect rationality assumption can lead scholars to mispredict market behavior and, possibly, advocate erroneous prescriptions for antitrust policy. In contrast, a behaviorally informed approach to antitrust law is based on scientific …

The Lame Ducks Of Marbury, John C. Nagle

Journal Articles

The election of 1800 was one of the most contested - and important - in American history. After it became clear that neither President John Adams nor a Federalist majority in Congress had been reelected, they acted during the lame-duck period to preserve their influences far into the future. They did so by appointing John Marshall as Chief Justice, ratifying the Treaty with France, creating numerous new federal judicial positions, and filling many of those positions with friends, family, and Federalists (including William Marbury). Not surprisingly, Jefferson and his supporters protested these actions as contrary to the will of the …

Just Do It: An Antidote To The Poison Pill, Julian Velasco

Journal Articles

The poison pill is the most powerful defense against hostile takeovers. It can render a company takeover-proof, or nearly so. Efforts at developing an antidote have focused largely on shareholder-adopted bylaws, but the legality of such proposals has been questioned by many. In any event, shareholder-adopted bylaws have not been very successful in eliminating poison pills thus far. In order to effect takeovers, hostile bidders cannot rely on the courts or the target company's shareholders; they can rely only on themselves. In this article, I propose a strategy for hostile bidders to counteract the poison pill and to consummate hostile …

Caesar, Succession, And The Chastisement Of Rulers, Patrick Martin, John M. Finnis

Journal Articles

Julius Caesar's reign as dictator and praefectus morum for life ended with his assassination in 44 B.C. It was preceded by over four hundred years of consular rule, a system of executive government by two consuls, elected for a one-year term. Consular government began in 509 B.C., ending the hundred-year rule of the Tarquin kings. Three works printed in 1594 recalled for English readers the overthrow of the Tarquins and the establishing of consular government. One was dedicated to the Earl of Essex. Another, by William Shakespeare, was dedicated to Essex's close companion, the Earl of Southampton. The third work …

Symposium: Client Counseling And Moral Responsibility, Thomas L. Shaffer, Deborah L. Rhode, Paul R. Tremblay, Robert F. Cochran

Journal Articles

One of the most important challenges to lawyers and clients is addressing issues that are not controlled by law. Will the client take steps (legal steps) that will harm other people? Will the officers of a corporation consider the effects of its actions on workers, on consumers, on the community, on the environment? In a divorce, will the client take actions that will harm a child or spouse? What role should the lawyer play regarding these questions? The way lawyers address such issues may do more to determine whether their practice is socially useful or socially harmful than any rule …

"My Friend Is A Stranger": The Death Penalty And The Global Ius Commune Of Human Rights, Paolo G. Carozza

Journal Articles

This article examines the judicial use of foreign jurisprudence in human rights adjudication, using as data a set of court decisions regarding the death penalty from over a dozen different tribunals in different parts of the world. The global human rights norms and judicial discourse on human rights in these cases can be understood and explained by comparing the contemporary practices to the medieval ius commune. The modern ius commune of human rights has three distinct characteristics which it shares with the historical example to which it is analogized: it is broadly transnational in scope and application; it is grounded …

Introduction To The Symposium Issue On The Americanization Of International Dispute Resolution, Mary Ellen O'Connell

Journal Articles

With the end of the Cold War and the emergence of the United States as the world's only superpower, we have heard expressions of concern about the great weight of American influence in so many aspects of international life. One area of concern is America's influence on the law and processes of international dispute resolution (IDR). Of all the practice areas in IDR, practitioners and scholars of international arbitration have had the most detailed discussions on this theme to date. Their greatest worry is the growing tendency toward American litigation style in a process that is neither American nor litigation. …

Wrongful Conviction, Lawyer Incompetence And English Law - Some Recent Themes, Geoffrey Bennett

Journal Articles

Viewed from a distance the outward appearances of the English Legal System might look reassuringly stable. In fact, nothing could be further from the case. During the last ten years almost every facet of the system, even the constitutional order, has been radically overhauled, or at least significantly modified. The whole system of civil procedure has been recast, after over a hundred years of relatively little major modification, in an attempt to simplify and expedite proceedings with a new emphasis on judicial case management. Perhaps most important of all, the Human Rights Act 1998, which has been effective from October …

Musical Courts: Plaintiff Picks A Court But Can Defendant Trump The Choice? An Analysis Of Breuer V. Jim's Concrete Of Brevard, Inc., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Brewer v. Jim's Concrete of Brevard, 538 U.S. 691 (2003). The author expected the Court to address the issue of whether the language of the Fair Labor Standards Act providing that "an action . . . may be maintained in any federal or state court" constitutes an express provision prohibiting removal to federal court when the plaintiff has chosen to maintain its lawsuit in state court.

Federal Courts, International Tribunals, And The Continuum Of Deference, Roger P. Alford

Journal Articles

The focus of the article is the degree of deference that federal courts should confer on the decisions of international tribunals. The Supreme Court has suggested that respectful consideration should be given to international tribunal decisions, but absent further guidance, federal courts have haphazardly addressed the question of what effect to give to their judgments. What is needed is a methodology for deference. For the first time in scholarly literature this article proposes such a methodology for all international tribunals based on seven models that have been applied to different international tribunals and should be applied to dozens of others. …

Contraception As A Mask Of Personhood, Charles E. Rice

Journal Articles

Sometimes you can learn something by teaching Torts. In my case it happened with the Palsgraf case and John Noonan did it. When we reached Palsgraf, I always discussed with the class Professor Noonan's analysis in Persons and Masks of the Law.

Mrs. Palsgraf lost as a matter of law in the Court of Appeals, and Chief Judge Cardozo wrote the opinion. Professor Noonan thinks she lost because her humanity was covered by the abstract persona, the mask, of an "unforeseeable plaintiff." He did not accuse Cardozo of misapplying the rule of law he used, but of myopia in selecting …

Stare Decisis And Due Process, Amy Coney Barrett

Journal Articles

In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality. The Due Process Clause requires that a court give a person notice and an opportunity for a hearing before depriving her of life, liberty or property. Because of this requirement, courts have held in the context of issue preclusion that as a general rule, judicial determinations can bind only parties. The preclusion literature asserts that this parties only requirement does not apply to stare decisis because stare decisis, in contrast to issue preclusion, is a flexible doctrine. Yet stare decisis …

Focusing Failures In Competitive Environments: Explaining Decision Errors In The Monty Hall Game, The Acquiring A Company Problem, And Multiparty Ultimatums, Avishalom Tor, Max Bazerman

Journal Articles

This paper offers a unifying conceptual explanation for failures in competitive decision-making across three seemingly unrelated tasks: the Monty Hall game (Nalebuff, 1987), the Acquiring a Company problem (Samuelson & Bazerman, 1985), and multiparty ultimatums (Messick, Moore, & Bazerman, 1997). We argue that the failures observed in these three tasks have a common root. Specifically, due to a limited focus of attention, competitive decision-makers fail properly to consider all of the information needed to solve the problem correctly. Using protocol analyses, we show that competitive decision-makers tend to focus on their own goals, often to the exclusion of the decisions …

An American Tale, Geoffrey J. Bennett

Journal Articles

How much influence should the legal profession in England and Wales have over law degree courses? Geoffrey Bennett says to consider the U.S. experience before ditching the idea.

Law And What I Truly Should Decide, John M. Finnis

Journal Articles

Suppose we tried to think about law without trying first to describe it or to work out what the concept of it is. Suppose we asked instead whether, and if so why, and when, we-or more precisely each one of us-should favor introducing, having, endorsing, maintaining, complying with and enforcing it. We would be trying to think about law, about something not limited to our own time and town, but as something that people of any time and place of which we are aware would, as we can understand, have the same or similar need for and reasons to comply …

"They Are Our Brothers, And Christ Gave His Life For Them": The Catholic Tradition And The Idea Of Human Rights In Latin America, Paolo G. Carozza

Journal Articles

Through the language of human rights, law can both reflect and constitute some of our most basic ideas about the requirements of human dignity and the human desire for freedom. It captures certain culturally embedded understandings about the nature of the human person in society and carries them forward in time through an institutionalized discourse and practice. This is especially so in those legal traditions that have inherited Western law’s historically consistent orientation toward the individual. Law never makes those sorts of claims in a systematically theoretical way, however. Instead, it is a form of praxis, combining theory and practice, …

Clerking For Scrooge, Barry Cushman

Journal Articles

During the Supreme Court’s memorable October,1936 term, a young man named John Knox clerked for Justice James Clark McReynolds. Knox kept a diary during the term, and between 1952 and 1963 converted the diary into a 978-page memoir. Yet his own efforts to publish the memoir came to naught. In 1978 he deposited all or a portion of the manuscript at a series of libraries. But there it languished until rescued from obscurity by David Garrow and Dennis Hutchinson, who in 2002 published an edition of the manuscript with the University of Chicago Press. This essay reviews Knox’s remarkable memoir …

Development Of Catholic Moral Doctrine: Probing The Subtext, M. Cathleen Kaveny

Journal Articles

A discussion on the contribution of Judge John T. Noonan’s works on moral doctrine to the study of Catholic moral theology. Professor Kaveny argues that Noonan’s writings have aided the development of Catholic moral doctrine by examining its rich living history and tradition. She notes that Noonan views the subject as a social historian who is interested in how Catholics have interpreted moral theology over time, tracing continuities and changes in their positions, and as a lawyer who is interested in learning how they have tried to find a balance between human dignity and the common good. Professor Kaveny addresses …

Canon Law And The Human Person, John J. Coughlin

Journal Articles

This article explores the unity of law and theology in the 1983 Code of Canon Law. The unity has remained critical since canon law emerged in the ancient Church. From the origins of the primitive Christian communities through the patristic era, the Church manifested a tension between charism and office, spirit and law? The medieval canonists achieved a great synthesis of the reason of law and faith of theology. The unified theory helped to form the basis of the Western legal tradition. The Reformation focus on sola fide (faith alone) tended to sever the unity. With the Enlightenment, reason was …

Is There A New World Court?, Douglass Cassel

Journal Articles

I am pleased to introduce our conference on Human Rights and the Law of War: New Roles for the World Court? Why this conference? And why now? Our conference is prompted by two contrasting phenomena: The caseload of the ICJ seems to have been transformed in the post-Cold War period. The World Court is now busier than ever. It has more cases, increasingly involving questions of human rights or ongoing armed conflict. Yet these three inter-related phenomena—increased caseload, and more cases involving human rights or armed conflict—have been little analyzed or studied. Our purpose is to contribute to public and …

Mental Health Assessment Of Minors In The Juvenile Justice System, Mike Jenuwine, Curtis Heaston, Diane N. Walsh, Gene Griffin

Journal Articles

Recent reports recognize that children and adolescents with undiagnosed mental illnesses make up a significant proportion of youth in the juvenile justice system. In determining how to rehabilitate youth in the juvenile justice system, judges, lawyers, and probation officers are starting to look at mental health problems as one element contributing to delinquent behavior. It is becoming more common for attorneys to request “mental health assessments” for their juvenile clients. Problems arise, however, in determining what specifically constitutes such an assessment, and in deciding what to do with this information once it is obtained. In 2001, the Illinois Cook County …

The Theological Case For Progressive Taxation As Applied To Diocesan Taxes Or Assessments Under Canon Law In The United States, Matthew J. Barrett

Journal Articles

Canon 1263 of the 1983 Code of Canon Law allows the diocesan bishop to impose taxes on the parishes in his diocese for diocesan needs. Canon 1263 requires that such taxes be proportionate to [the parishes'] income. To a tax lawyer, the adjective proportionate describes a so-called flat tax, or a system that imposes the same tax rate on every taxpayer's taxable income. Canon law commentators, however, have consistently agreed that canon 1263 also authorizes a progressive tax, which in this context would impose a higher tax rate on parishes with larger incomes. This article argues that Catholic social teachings, …

New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett

Journal Articles

Following the publication of Opportunities for Obtaining and Using Litigation Reserves and Disclosures, which highlighted the helpful information about litigation reserves that a litigator can often detect or discover from an opponent's financial statements, accounting books and records, tax returns, public filings with the Securities and Exchange Commission (the SEC), and auditor, two important regulatory developments occurred in early 2003 that create additional opportunities to obtain information about an opponent's assessments of (i) expected liability in the underlying case or (ii) obligations or settlements in similar cases. First, pursuant to the Sarbanes-Oxley Act of 2002, the SEC issued final regulations …

From Conquest To Constitutions: Retrieving A Latin American Tradition Of The Idea Of Human Rights, Paolo G. Carozza

Journal Articles

This article explores the historical roots of the Latin American region's strong commitment to the idea of universal human rights, focusing on four key intellectual moments: the ethical response to the Spanish conquest; the rights ideology of the continent's liberal republican revolutions; the articulation of social and economic rights in the Mexican Constitution of 1917; and the Latin American contributions to the genesis of the Universal Declaration of Human Rights. Constructing a narrative from these examples, the article argues for the recognition of a distinct Latin American tradition within the global discourse of human rights.

The Biblical Prophets As Lawyers For The Poor, Thomas L. Shaffer

Journal Articles

Lawyers practicing poverty law often lack mentors and role models. This author discusses how biblical figures, who served poor people, could be mentors and role models for lawyers practicing poverty law. Prophets, and particularly prophets-as-lawyers, redefine power relationships. Shaffer discusses his personal journey through out his career in using religious guidance to help him better understand his career. He also discuss his teachings to his law students of the value of learning from prophets in their legal careers.

The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett

Journal Articles

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …

Promoting Children's Interest Through A Responsible Research Agenda, Margaret F. Brinig

Journal Articles

I deeply wish to see more good empirical work in family law. If our system had all of the money in the world, I would wish to spend it to guarantee happy, healthy children. But since resources are scarce, and children's issues must compete with other interests that range from national security to care for the elderly, I would suggest spending a relatively modest amount to determine what programs would likely prove successful.

Usually public policy follows from the wishes of adults. In family law, this occurs although virtually all the legislation dealing with families and children begins with a …

Lawyers And Biblical Prophets, Thomas L. Shaffer

Journal Articles

This is part of a broader exploration of the suggestion that the biblical prophets-Moses, Isaiah, Jeremiah, Amos, Nathan, and the others-are sources of ethical reflection and moral example for modern American lawyers. The suggestion appears to be unusual; I am not sure why.

The Prophets were, more than anything else, lawyers-as their successors, the Rabbis of the Talmud, were. They were neither teachers nor bureaucrats, not elected officials or priests or preachers. And the comparison is not an ancient curiosity:

Much of what admirable lawyer-heroes have done in modern America has been prophetic in the biblical sense-that is, what they …

Cultural Change And "Catholic Lawyers", Stephen F. Smith

Journal Articles

If there is anything that America definitely does not need, it would seem, it is more lawyers. Over the last thirty years or so, the number of lawyers practicing in the United States has almost tripled to current levels of roughly 900,000 practicing attorneys. To this number, our nation's law schools add another 35,000 attorneys annually. In spite of this, the purpose of this special inaugural law review issue is to commemorate the founding of a new school, the Ave Maria School of Law. It is an honor for me to be able to share in the joy and pride …