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Full-Text Articles in Law

More Speech Is Better, Erwin Chemerinsky Jan 1997

More Speech Is Better, Erwin Chemerinsky

Faculty Scholarship

In this Reply, Professor Chemerinsky argues that the application of First Amendment principles to private institutions is desirable. Under traditional law, the free speech interests of private institutions are always favored over the free speech interests of individuals. Transporting First Amendment norms to the private sector is desirable because more speech is generally best and private power can chill and prevent speech just as much as government actions. Courts should balance the competing free speech interests of institutions and individuals, rather than always siding with the institution over the individual.


The Filibuster, Catherine Fisk, Erwin Chemerinsky Jan 1997

The Filibuster, Catherine Fisk, Erwin Chemerinsky

Faculty Scholarship

The filibuster in the United States Senate imposes an effective supermajority requirement for the enactment of most legislation because sixty votes are required to bring a measure to a vote over the objection of any senator. Filibusters are ubiquitous but virtually invisible, for the contemporary Senate practice does not require a senator to hold the floor to filibuster; senators filibuster simply by indication to the Senate leadership that they intend to do so. The prevalence and invisibility of this "stealth filibuster" dramatically affects which legislation is passed and which nominees are confirmed. The stealth filibuster also raises serious constitutional questions ...


Decision-Makers: In Defense Of Courts, Erwin Chemerinsky Jan 1997

Decision-Makers: In Defense Of Courts, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


What’S Law Got To Do With It? The Political, Social, Psychological And Other Non-Legal Factors Influencing The Development Of (Federal) Criminal Law, Sara Sun Beale Jan 1997

What’S Law Got To Do With It? The Political, Social, Psychological And Other Non-Legal Factors Influencing The Development Of (Federal) Criminal Law, Sara Sun Beale

Faculty Scholarship

No abstract provided.


Law As “The Common Thoughts Of Men”: The Law-Teaching And Judging Of Thomas Mcintyre Cooley, Paul D. Carrington Jan 1997

Law As “The Common Thoughts Of Men”: The Law-Teaching And Judging Of Thomas Mcintyre Cooley, Paul D. Carrington

Faculty Scholarship

In this article, Professor Carrington offers an intellectual history of Thomas McIntyre Cooley. Cooley, a close contemporary of Dean Langdell, was in his time the premier judge, law teacher, and legal scholar in America, overshadowing not only Langdell, but his somewhat younger associate, Oliver Wendell Holmes. The twentieth century has neglected, even scorned, Cooley, while elevating Langdell and Holmes: Langdell as the patron of the technographic profession trained by Hessians, and Holmes as the patron of a disengaged academic sub-profession. In the Jacksonian universe producing Cooley, there was little appreciation of the likes of either Landgell and his successors, or ...


Remarks On Jeffrey Rosen’S Paper, Walter E. Dellinger Iii Jan 1997

Remarks On Jeffrey Rosen’S Paper, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.


Foucault In Cyberspace: Surveillance, Sovereignty, And Hardwired Censors, James Boyle Jan 1997

Foucault In Cyberspace: Surveillance, Sovereignty, And Hardwired Censors, James Boyle

Faculty Scholarship

This is an essay about law in cyberspace. I focus on three interdependent phenomena: a set of political and legal assumptions that I call the jurisprudence of digital libertarianism, a separate but related set of beliefs about the state's supposed inability to regulate the Internet, and a preference for technological solutions to hard legal issues on-line. I make the familiar criticism that digital libertarianism is inadequate because of its blindness towards the effects of private power, and the less familiar claim that digital libertarianism is also surprisingly blind to the state's own power in cyberspace. In fact, I ...


Should We Rush To Reform The Criminal Jury?: Consider Conviction Rate Data, Neil Vidmar, Sara Sun Beale, Mary R. Rose, Laura F. Donnelly Jan 1997

Should We Rush To Reform The Criminal Jury?: Consider Conviction Rate Data, Neil Vidmar, Sara Sun Beale, Mary R. Rose, Laura F. Donnelly

Faculty Scholarship

No abstract provided.


Introduction: Is Law An Autonomous Discipline?, Steven L. Schwarcz Jan 1997

Introduction: Is Law An Autonomous Discipline?, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.


Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler Jan 1997

Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler

Faculty Scholarship

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to ...


The Current Illegitimacy Of International Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith Jan 1997

The Current Illegitimacy Of International Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

No abstract provided.


Customary International Law As Federal Common Law: A Critique Of The Modern Position, Curtis A. Bradley, Jack L. Goldsmith Jan 1997

Customary International Law As Federal Common Law: A Critique Of The Modern Position, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

In the last twenty years, a consensus has developed among courts and scholars that customary international law has the status of federal common law. We label this consensus the "modern position." Courts have endorsed the modern position primarily to support their conclusion that international human rights lawsuits between aliens "arise under" the laws of the United States for purposes of Article III of the Constitution. Scholars have pushed the consequences of the modern position further by arguing that customary international law preempts inconsistent state law under the Supremacy Clause, binds the President under the Take Care Clause, and even supersedes ...


The Fundamentals Of An Electronic-Based Federal Securities Act, James D. Cox Jan 1997

The Fundamentals Of An Electronic-Based Federal Securities Act, James D. Cox

Faculty Scholarship

No abstract provided.


Tax And The Married Woman, Lawrence A. Zelenak Jan 1997

Tax And The Married Woman, Lawrence A. Zelenak

Faculty Scholarship

Reviewing, Edward J. McCaffery, Taxing Women (1997)


Moderating Investigative Lies By Disclosure And Documentation, Robert P. Mosteller Jan 1997

Moderating Investigative Lies By Disclosure And Documentation, Robert P. Mosteller

Faculty Scholarship

No abstract provided.


Nothing And Everything: Race, Romer, And (Gay/Lesbian/Bisexual) Rights, Robert S. Chang, Jerome Mccristal Culp Jr. Jan 1997

Nothing And Everything: Race, Romer, And (Gay/Lesbian/Bisexual) Rights, Robert S. Chang, Jerome Mccristal Culp Jr.

Faculty Scholarship

In this Article, Professors Chang and Culp propose that the Supreme Court's decision in Romer v. Evans, viewed by some scholars as a progressive case about gay/lesbian/bisexual rights, has little to do with gay/lesbian/bisexual rights as such. They argue that whatever protection Romer provides to gays, lesbians, and bisexuals is provided not because of their sexuality but, rather, despite it. The authors demonstrate their thesis by examining the racial underpinnings of the Court's opinion, which begins with Justice Harlan's famous dissent in Plessy v. Ferguson and which relies on a specific vision of ...


A Grotian Tradition Of Theory And Practice: Grotius, Law, And Moral Skepticism In The Thought Of Hedley Bull, Benedict Kingsbury Jan 1997

A Grotian Tradition Of Theory And Practice: Grotius, Law, And Moral Skepticism In The Thought Of Hedley Bull, Benedict Kingsbury

Faculty Scholarship

No abstract provided.


Formalism And Functionalism In Federalism Analysis, Erwin Chemerinsky Jan 1997

Formalism And Functionalism In Federalism Analysis, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Judicial Overkill In Applying The Rule In Shelley’S Case, William A. Reppy Jr. Jan 1997

Judicial Overkill In Applying The Rule In Shelley’S Case, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.


The Principle Of The Military Objective In The Law Of Armed Conflict, Horace B. Robertson Jan 1997

The Principle Of The Military Objective In The Law Of Armed Conflict, Horace B. Robertson

Faculty Scholarship

In their commentary on the two 1977 Protocols Additional to the Geneva conventions of 1949, Michael Bothe, Karl Josef Partsch, and the late Waldemar A. Soif remark that the definition of the "military objective" in the sense of targets for attack had, until adoption of Article 52 of Protocol Additional I, "eluded all efforts to arrive at a generally acceptable solution?"


A Distant Mirror: The Bill Of Peace In Early American Mass Torts And Its Implications For Modern Class Actions, Thomas D. Rowe Jr. Jan 1997

A Distant Mirror: The Bill Of Peace In Early American Mass Torts And Its Implications For Modern Class Actions, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.


The Constitutional Limits Of Judicial Rulemaking: The Illegitimacy Of Mass-Tort Settlements Negotiated Under Federal Rule 23, Paul D. Carrington, Derek P. Apanovitch Jan 1997

The Constitutional Limits Of Judicial Rulemaking: The Illegitimacy Of Mass-Tort Settlements Negotiated Under Federal Rule 23, Paul D. Carrington, Derek P. Apanovitch

Faculty Scholarship

No abstract provided.


Law And The Wisconsin Idea, Paul D. Carrington, Erika King Jan 1997

Law And The Wisconsin Idea, Paul D. Carrington, Erika King

Faculty Scholarship

No abstract provided.


Renovating Discovery, Paul D. Carrington Jan 1997

Renovating Discovery, Paul D. Carrington

Faculty Scholarship

No abstract provided.


A Tale Of Two Lawyers, Paul D. Carrington Jan 1997

A Tale Of Two Lawyers, Paul D. Carrington

Faculty Scholarship

No abstract provided.


Making Securities Fraud Class Actions Virtuous, James D. Cox Jan 1997

Making Securities Fraud Class Actions Virtuous, James D. Cox

Faculty Scholarship

No abstract provided.


Latinos, Blacks, Others, And The New Legal Narrative, Jerome M. Culp Jan 1997

Latinos, Blacks, Others, And The New Legal Narrative, Jerome M. Culp

Faculty Scholarship

No abstract provided.


The Defensive Use Of Federal Class Actions In Mass Torts, Francis Mcgovern Jan 1997

The Defensive Use Of Federal Class Actions In Mass Torts, Francis Mcgovern

Faculty Scholarship

No abstract provided.


Agency And The Unincorporated Firm: Reflections On Design On The Same Plane Of Interest, Deborah A. Demott Jan 1997

Agency And The Unincorporated Firm: Reflections On Design On The Same Plane Of Interest, Deborah A. Demott

Faculty Scholarship

No abstract provided.


Lawyers Have Free Speech Rights, Too: Why Gag Orders On Trial Participants Are Almost Always Unconstitutional, Erwin Chemerinsky Jan 1997

Lawyers Have Free Speech Rights, Too: Why Gag Orders On Trial Participants Are Almost Always Unconstitutional, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.