Law Commons^™

Never Trust A Corporation, William Wilson Bratton

Articles

No abstract provided.

Rebuilding Afghanistan, Janet Stearns

Articles

The calls to service now are global and diverse, but so are we.
In a previous article in this Journal, I wrote that many of us practicing in the field of housing and community development law had adopted a "myopic" view of the world. At that time, I urged colleagues to consider the problems of growth management facing urban centers around the globe. I concluded that "[n]ow is the time for us to join the global community in the struggle for more decent affordable housing and more sustainable urban development for all people."
The tragic events of September 11 forced …

Barely At The Margins: Race And Ethnicity In Legal Education -- A Curricular Study With Latcritical Commentary, Francisco Valdes

Articles

No abstract provided.

Private Pathologies And Public Policies: Race, Class, And The Failure Of Child Welfare (Book Review), Charlton C. Copeland

Articles

No abstract provided.

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman

Articles

Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in …

Banking For The Unbanked, Michael S. Barr

Articles

The consequences of not having access to mainstream financial services can be severe. Fim, the "unbanked" face high costs for basic financial servies. For example, a 2000 Treasury [U.S. Treasury Department] study found that a worker eaming $12,000 a year would pay approximately $250 annually just to cash payroll checks at a check cashing outlet, in addition to fees for money orders, wire transfers, bill payments, and other common transactions. Regular payments with low credit risk that could be directly deposited into bank accounts, with significantly lower payment systems costs, form the bulk of checks cashed at these check cashing …

Sovereignty: The State, The Individual, And The International Legal System In The Twenty First Century, Ronald A. Brand

Articles

This essay proposes that an understanding of original concepts of sovereignty both helps explain twentieth century developments in international law and provides a proper context for coming changes in the ways in which persons relate to states, states relate to states within the international legal system, and ultimately and most importantly-the way international law affects and applies to persons. The most important developments in international law in the new century are likely not to be in state-state relationships but rather in the status and rights of the person in international law. The twentieth century process of globalization brought us back …

Federal Class Action Reform In The United States: Past And Future And Where Next?, Edward H. Cooper

Articles

Predicting the likely future developments in class action practice in the federal courts of the United States must begin in the past.

Memorial: Beverley J. Pooley (1934-2001), Margaret A. Leary

Articles

Beverley J. Pooley died at the age of sixty-seven on August 23, 2001, of kidney failure due to complications from pancreatic cancer. His death came shockingly fast, for he had only learned how seriously ill he was the week before. The bare facts about Bev's life cannot begin to describe what he was to the local community, the University of Michigan, and the law school world. Born in England in 1934, he earned B.A. and LL.B. degrees from Cambridge University; and LL.M., S.J.D., and M.A. in Library Science degrees from the University of Michigan. During that time he served in …

Looking Back On Planned Parenthood V. Casey, Christina B. Whitman

Articles

Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar's articles on coerced confessions, Terry Sandalow's essay on affirmative action, Joe Sax and Phillip Hiestand's description of the emotional impact of living in a slum, Martha Chamallas and Linda Kerber's demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, and, most …

The Causal Nexus In International Refugee Law, James C. Hathaway

Articles

For all of its value as a critical mechanism of human rights protection, international refugee law is not an all-encompassing remedy. In at least two ways, the category of persons of concern to refugee law is significantly more narrow than the universe of victims of human rights abuse. First, only persons able somehow to leave their own country can be refugees. Alienage is a requirement for refugee status because of concerns about the limits of international resources and the potential for responsibility-shifting, as well as in recognition of the fundamental constraints which sovereignty still places on meaningful intervention by the …

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske

Articles

In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …

The New Contract: Welfare Reform, Devolution, And Due Process, Christine N. Cimini

Articles

This Article analyzes the due process implications of the change in welfare administration from a federal statutory entitlement model to the devolved contractual model and posits that, despite the changes, due process protections still exist. These protections arise from the private law of contracts on two different levels. The first level is the macro, or implied, contract, that I refer to as the social contract between the government and the populace. The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of governmental authority; foundational democratic legal sources, such as the Declaration …

Social Networks And Electronic Commerce In China, Jane K. Winn

Articles

Communication technologies that make up the emerging global information infrastructure have the power to regulate online behavior. Social networks in Chinese society have survived the growth of formal legal institutions and liberalization of China's economy, but it is not clear whether they can survive the regulatory pressures created by global information technology networks.

The spread of electronic commerce technologies in China may strengthen legal institutions and open local markets to international competition, but is likely to be resisted by all the same interests that resist those changes in other contexts. The Chinese response to the spread of electronic commerce might …

Defeating Environmental Law: The Geology Of Legal Advantage, William H. Rodgers, Jr.

Articles

My talk today will: (1) introduce the metaphor of geology, (2) suggest to you that complexity has "gainers" as well as "losers," and (3) show you how environmental laws can be defeated by these twin engines of complexity and clever human adversaries.

[Third Annual Lloyd K. Garrison Lecture on Environmental Law, Pace University School of Law.]

The Measure Of Indian Water Rights: The Arizona Homeland Standard, Gila River Adjudication, Barbara Cosens

Articles

On November 26, 2001, the Arizona Supreme Court concluded that Indian reservations were established as homelands. By articulating a homeland standard for the measure of reserved water rights based on tribal economic development plans, cultural needs, and historic water uses, the Arizona Supreme Court has eliminated many of the blatant inequities plaguing the current approach to Indian water rights quantification. Nevertheless, there are concerns with wholesale adoption of the Arizona standard, including the effect on those who have devoted resources in reliance on the previous standard, the introduction of uncertainty in the method of quantification, and the impact on federal …

Becoming America's Best Small State Law School: A Vision For The University Of Idaho College Of Law, Donald L. Burnett Jr.

Articles

No abstract provided.

Managing The Dean's Ceremonial Role, John A. Miller

Articles

No abstract provided.

Problem Of Unraveling: Biodiversity And Private Property In Land, Dale Goble

Articles

No abstract provided.

A Tribute To Sheldon A. Vincenti, Monique C. Lillard

Articles

No abstract provided.

Brandeis & Warren's 'The Right To Privacy And The Birth Of The Right To Privacy', Ben Bratman

Articles

Privacy law and conceptions of a right to privacy have, of course, evolved considerably since 1890 when future Supreme Court Justice Louis Brandeis and Boston attorney Samuel Warren penned their now ageless article, The Right to Privacy, 4 Harv. L. Rev. 193, in which they argued the law should recognize such a right and impose liability in tort for intrusions on it. But quite apart from any argument about how attenuated the link might be between Brandeis and Warren's specific proposals and the current state of privacy law, is it fair to say, as so many scholars and judges repeatedly …

Hate Crimes And Everyday Discrimination: Influences Of And On The Social Context, Lu-In Wang

Articles

This article discusses aspects of hate crime that make it somewhat unexceptional. By making these points, I do not in any way mean to imply that hate crime is not a problem worthy of attention in the law. To the contrary, I believe that to point out the unexceptional aspects of hate crimes is to highlight just how important a problem hate crime is, and may help us to develop more effective ways of addressing it. My points are based largely on lessons drawn from social science and historical research on the effects of and motivations behind bias-related violence. Specifically, …

Unwarranted Assumptions In The Prosecution And Defense Of Hate Crimes, Lu-In Wang

Articles

Although at far from the level of intensity and prominence that it reached 10 years ago, the controversy over hate crimes legislation continues. In the early 1990s, debate centered on two main points of contention: whether such laws, which either criminalized traditionally racist acts or increased the punishment for other crimes when they were motivated by racial or ethnic bias, violated the First Amendment right to freedom of expression, and whether the laws were unwise and illegitimate because they seemed to provide greater protection against crime to minority groups and to emphasize, rather than obscure or obliterate, the racial divisions …

The Rule That Isn't A Rule - The Business Judgment Rule, Douglas M. Branson

Articles

On a doctrinal basis, few areas of corporate law are more confused then the duty of care applicable to corporate officials and its handmaiden, the business judgment rule. The tendency of many scholars and practitioners has been to collapse the duty of care into the business judgment rule, as Professor Stuart Cohn pointed out more than a decade ago. The business judgment rule is a separate legal construct that is related to, but separate from, the duty of care and one which protects only proactive and not somnambulant directors and officers. The business judgment rule stays at center stage for …

The Social Responsibility Of Large Multinational Corporations, Douglas M. Branson

Articles

In the 1970s, legal scholars wrote extensively on the subject, as it was then known, "corporate social responsibility." Proposals surfaced for pubic interest directors, mandatory social accounting and disclosure, increased use of Security Exchange Commission (SEC) shareholder proxy proposals, federal minimum debate was eclipsed completely by the law and economics movement of the 1980s. Now, in the new century, the inquiry into social responsibility of large corporations has begun anew. This article is an attempt to take that inquiry, or debate, and place it in the international context.

I have four stories to tell. First is that much of the …

Promoting Judicial Acceptance And Use Of Limited Guardianship, Lawrence A. Frolik

Articles

Guardianship comes within the special province of judges. In the great majority of guardianship hearings, there is no jury. The presiding judge is the sole arbiter of whether the alleged incapacitated person meets the legal standard of mental incapacity and whether that person would benefit from the appointment of a guardian. If a guardian is appointed, the judge determines the type and extent of the powers granted to the guardian. Of course, the judge is not simply free to follow his or her own instincts or desires, for the judge is bound to determine the facts carefully and apply the …

Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman

Articles

No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses …

Chief Judge Proctor Hug, Jr. And The Split That Didn't Happen, Arthur D. Hellman

Articles

Judge Procter Hug, Jr. became Chief Judge of the Ninth Circuit on March 1, 1996. Nine months earlier, eight Senators from five western states had introduced Senate Bill 956. The purpose of the bill, as stated in its title, was "to divide the ninth judicial circuit of the United States into two circuits." If the bill had been enacted, it would have been only the third time in the 104-year history of the federal courts of appeals that a circuit was split. And it would have been the first time that Congress had divided a circuit without waiting for a …

Can A Theory Of Interpretation Make A Difference?, George H. Taylor

Articles

Can a theory of interpretation make a difference? The question has been posed most prominently by Judge Richard Posner, who, in recent work, has criticized the ability to make a difference of both theory writ large and of a theory of interpretation in particular. In other work I contend, contrary to Posner, that a theory of interpretation can make a difference at the level of methodology. Using the example of constitutional and statutory interpretation in law, I develop a theory that argues for the propriety and value of certain methods of interpretation over others. In the present essay, my concern …

Behavioral Genetics And The Best Interests Of The Child Decision Rule, David J. Herring

Articles

This article proposes that modern child custody law should be reassessed in light of recent scientific findings. Judicial determinations of custody use the "best interests of the child" rule. The rule is justified to a large extent by the goal of maximizing child developmental outcomes. The assumption is that a child whose "best interests" are protected stands a better chance of becoming a socially well-adjusted, productive and prosperous citizen.

Recent child development studies have shown that so-called "shared environment," or home environment factors have little effect on child development so long as the shared environment is minimally adequate. Genetics and …