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Articles 1 - 16 of 16
Full-Text Articles in Law
A Selective Bibliography On The Endangered Species Act, Kristin Cheney
A Selective Bibliography On The Endangered Species Act, Kristin Cheney
Faculty Articles
Since its passage in 1973, the Endangered Species Act (ESA) has been the subject of much discussion and numerous publications. This bibliography is not an exhaustive treatment of the topic, but rather concentrates on monographs published from 1980 forward and includes only post-1988 journal articles. To aid the reader in locating relevant references, the journal articles are organized into the subcategories of (1) law and regulations, (2) litigation, and (3) international and extraterritorial.
The Right To Health Care In The United States, Ken Wing
The Right To Health Care In The United States, Ken Wing
Faculty Articles
This article provides an analysis of the history of constitutional interpretation in the United States, and reveals that any right Americans have to health care is a political rather than constitutional right.
Labor, Loyalty, And The Corporate Campaign, Melinda J. Branscomb
Labor, Loyalty, And The Corporate Campaign, Melinda J. Branscomb
Faculty Articles
This article critically assesses the disloyalty test, offering badly needed guidance in this murky and risky area of labor law. Part I provides an overview of the relevant portions of the Act and the problems facing the National Labor Relations Board (NLRB or the Board) and the courts as these decision makers interpret section 7 law. It reviews the early section 7 exceptions, the creation of the disloyalty test, and the aftermath of this new exception, and it introduces a number of problems left as Jefferson Standard's legacy. Part II discusses the analytical inconsistency applied in disloyalty doctrine analysis and …
The Psychology Of First Amendment Scholarship: A Reply, David Skover, Ronald Collins
The Psychology Of First Amendment Scholarship: A Reply, David Skover, Ronald Collins
Faculty Articles
This essay was written as an afterword to the Colloquy entitled The First Amendment in a Commercial Culture, as a reply to commentaries on "Commerce & Communication" authored by Leo Bogart (advertising expert), Sut Jhally (professor of communications), Alex Kozinski (federal appellate judge) & Stuart Banner (attorney), and Rodney Smolla (law professor). The authors, Professors Skover and Collins, had hoped that Commerce & Communication would prompt new debate and discussion about certain First Amendment issues. However, judging from thier colleagues' reactions, there may well be more of the former than the latter. But in the scheme of things, who's to …
Praetorianism & Common Law In Post-Colonial Settings: Judicial Responses To Constitutional Breakdowns In Pakistan, Tayyab Mahmud
Praetorianism & Common Law In Post-Colonial Settings: Judicial Responses To Constitutional Breakdowns In Pakistan, Tayyab Mahmud
Faculty Articles
The successive constitutional crises that confronted the Pakistani courts were not of their own making. But the doctrinally inconsistent, judicially inappropriate, and politically timid responses fashioned by these courts ultimately undermined constitutional governance. When confronted with the question of the validity and scope of extra constitutional power, the courts vacillated between Hans Kelsen's theory of revolutionary validity, Hugo Grotius's theory of implied mandate, and an expansive construction of the doctrine of state necessity. A more principled and realistic response would have been to declare the validity of extra constitutional regimes a nonjusticiable political question. Besides ensuring doctrinal consistency, a refusal …
Bringing Law To Sentencing, David Boerner
Bringing Law To Sentencing, David Boerner
Faculty Articles
This article outlines the evolution of sentencing standards over the years. It identifies several key events in the progression toward a more lawful approach to sentencing.
Woman's Ghetto Within The Legal Profession, Marilyn Berger, Kari A. Robinson
Woman's Ghetto Within The Legal Profession, Marilyn Berger, Kari A. Robinson
Faculty Articles
In this article, we explore how the historical, stereotypical images of women as the timid, delicate caretaker shaped and continue to shape women's roles in the work force. As women entered the workplace, they became nurses, not doctors; dental hygienists, not dentists; paralegals, not lawyers; and kindergarten teachers, not university professors. This pattern persists today. We examine the professions to show how women's nurturing caretaker image has resulted in special niches within the professions, positions which perpetuate women in caretaker roles. Specifically, we examine the legal profession and probe the contemporary barricades erected to channel women into positions that fulfill …
Postmodern 'Progress': Reconsidering The Copyright And Patent Power, Margaret Chon
Postmodern 'Progress': Reconsidering The Copyright And Patent Power, Margaret Chon
Faculty Articles
This article undertakes a postmodern analysis of the term ‘Progress’ in the Constitution’s Copyright Clause, finding stewarding the production of knowledge is integral to the clause. First, by deconstructing the linear, forward assumption entailing Progress. As technology concentrates, Progress entails distributional fairness and decentralized control over knowledge. Relying on the writings of the Founders and recent copyright decisions, this article does not limit postmodernism to a theory recognizing that words have multiple meanings, instead it argues that the Copyright Clause transforms the idea of knowledge to a common resource like water and air, and places knowledge into a public trust, …
Rethinking Advocacy Training, Marilyn Berger, John Mitchell
Rethinking Advocacy Training, Marilyn Berger, John Mitchell
Faculty Articles
This article examines advocacy teaching methodology and how to impart to students and beginning attorneys the methods and approaches that experienced trial lawyers use.
The Role Of The Legislature In Guidelines Sentencing In The "Other Washington", David Boerner
The Role Of The Legislature In Guidelines Sentencing In The "Other Washington", David Boerner
Faculty Articles
Washington's legislature crafted a sentencing system which structures but does not eliminate discretionary decisions affecting sentences. Washington has a Sentencing Guidelines Commission which functions as an agent of the legislature and not as an independent actor. Data collected by the Sentencing Guidelines Commission since 1985 demonstrate the effectiveness of Washington's sentencing guidelines in translating the legislature's sentencing policy judgments into reality. The legislature's role in formulating and refining sentencing policies is examined in detail, as well as Washington's Sentencing Reform Act of 1981 and its effect on sentencing.
In A Different Register: The Pragmatics Of Powerlessness In Police Interrogation, Janet Ainsworth
In A Different Register: The Pragmatics Of Powerlessness In Police Interrogation, Janet Ainsworth
Faculty Articles
In a majority of states, a suspect is deemed to have invoked the Miranda right to counsel only if the suspect's request is clear and unequivocal. This doctrine is challenged as an insufficient protection of constitutional rights. It is argued that courts should treat even ambiguous and equivocal requests as per se effective innovations of the right to counsel.
Sex Stories: A Review Of Sex And Reason, Margaret Chon
Sex Stories: A Review Of Sex And Reason, Margaret Chon
Faculty Articles
In this review of Sex Stories-A Review Of Sex And Reason by Richard A. Posner, Professor Chon explores the implications of Posner’s exuberant faith in bioeconomic reasoning, unalloyed by any of the late modernist or postmodernist challenges to the nature and limits of science and its transformative potential. In doing so, Professor Chon attempts three things. First, she discusses some of his sociobiological assertions in order to demonstrate that evolutionary biology consists of a much richer and more contradictory set of assertions than Posner would have us believe. Even within the empiricist framework, therefore, Posner leaves out many stories that …
Toward An Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, And Narrative Space, Robert S. Chang
Toward An Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, And Narrative Space, Robert S. Chang
Faculty Articles
As Asian Americans join the legal academy in growing numbers, they change the face of the academy and challenge its traditional legal doctrines. The author announces an "'Asian American Moment" in the legal academy and an opportunity to reverse the pattern of discrimination against Asian Americans. Traditional civil rights work and current critical race scholarship fail to address the unique issues for Asian Americans, including nativistic racism and the model minority myth. Space must be made in the legal academy for an Asian American Legal Scholarship and the narratives of Asian Americans. The author asserts that the rational-empirical mode is …
Abortion And The Pied Piper Of Compromise, Annette E. Clark
Abortion And The Pied Piper Of Compromise, Annette E. Clark
Faculty Articles
In this article, Professor Clark offers a detailed analysis of the controversy among legal scholars which has long surrounded the issue of legal regulation of abortion. Professor Clark begins by focusing on a recent book by Professor Laurence Tribe, Abortion: The Clash of Absolutes. She argues that although Tribe claims to seek a compromise solution to the abortion problem, he fails in this pursuit both because he does not truly search for compromise and because he is unwilling to explore intermediate moral or legal positions that are not acceptable to either the pro-choice or pro-life movements. In contrast, Professor Clark …
Commerce & Communication, David Skover, Ronald Collins
Commerce & Communication, David Skover, Ronald Collins
Faculty Articles
As the lead piece in a Colloquy entitled The First Amendment in a Commercial Culture, this article argues that, in our culture of advanced capitalism, public discourse cannot significantly be separated from the influences of commercialism. To understand the First Amendment, we must look beyond cases and commentary to the actual ways in which our culture communicates about and through commodities. We must think less about the marketplace of ideas and more about the marketing of items.
Blackmailers, Bribe Takers, And The Second Paradox, Sidney Delong
Blackmailers, Bribe Takers, And The Second Paradox, Sidney Delong
Faculty Articles
An adequate theoretical justification for the prohibition of blackmail should explain both of its paradoxes. However, a review of contemporary theories of blackmail shows that they are able neither to explain why blackmail is criminalized nor to rationalize the different treatment of blackmail and bribery. This review suggests that the paradoxes of blackmail may not yield to rational analysis. In contrast to deductive analyses premised on rights or economics, this paper offers an account of bribery and blackmail that is premised on their different social meanings. The author suggests that the legal and moral treatment of bribery and blackmail spring …