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Articles 1 - 23 of 23
Full-Text Articles in Law
Dissing Congress , Ruth Colker, James J. Brudney
Dissing Congress , Ruth Colker, James J. Brudney
Faculty Scholarship
This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …
Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States Social Movements And Law Reform, Catherine Powell
Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States Social Movements And Law Reform, Catherine Powell
Faculty Scholarship
Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal …
Lawyer And Public Service, The Historical Perspectives On Pro Bono Lawyering, Russell G. Pearce
Lawyer And Public Service, The Historical Perspectives On Pro Bono Lawyering, Russell G. Pearce
Faculty Scholarship
Historically, the first way of viewing the lawyer's role was as a member of America's governing class. Second came cause lawyering on behalf of a particular issue. Third, and most recently, arose the idea of pro bono lawyering, a less ambitious incarnation of the governing class lawyer who contributes time to helping cause lawyers. These categories are not rigid: for each individual they may overlap to one degree or another. This framework is preliminary and requires further research and development. Nonetheless, it provides a useful tool for explaining how lawyers-and in particular the heroic lawyers described in this symposium-connect to …
The Uniform State Law Process: Will The Uma And Ruaa Be Adopted By The States?, James J. Brudney
The Uniform State Law Process: Will The Uma And Ruaa Be Adopted By The States?, James J. Brudney
Faculty Scholarship
Most practicing attorneys and legal academics first become aware of uniform statutes when studying the Uniform Commercial Code (UCC) in law school. Yet the UCC's widespread acceptance and periodic renewal are not the legacy that generally attends uniform law ventures This overview of the uniform statutory process offers some perspective for proponents of the recently approved Uniform Mediation Act (UMA) and Revised Uniform Arbitration Act (RUAA) as they attempt to secure enactment in multiple state legislatures.
Next Challenge In Sexual Harassment Reform: Racial Disparity, The Panel One: Gender, Race, And Sexuality: Historical Themes And Emerging Issues In Women's Rights Law, Tanya K. Hernandez
Next Challenge In Sexual Harassment Reform: Racial Disparity, The Panel One: Gender, Race, And Sexuality: Historical Themes And Emerging Issues In Women's Rights Law, Tanya K. Hernandez
Faculty Scholarship
In order to do my homework in discussing both a tribute to women's lawyering and activism and also discuss emerging issues, I am going to focus on sexual harassment.
Faith And The Lawyer's Practice Symposium: Law Religion And The Public Good, Russell G. Pearce
Faith And The Lawyer's Practice Symposium: Law Religion And The Public Good, Russell G. Pearce
Faculty Scholarship
If there is a religious way to read, is there a religious way to be a lawyer? More and more lawyers, judges and scholars are answering yes to that question. We heard earlier from Cardinal Bevilacqua about the history of the Religious Lawyering Movement, which blossomed in the 1990s. There was writing about the law and religion before that time." We can date religious lawyering as a body of work in mainstream legal literature, as Cardinal Bevilacqua did, to the work of Professor Thomas Shaffer in the 1980s.Why did this movement take off in the 1990s? Again, what accounts for …
Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas H. Lee
Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas H. Lee
Faculty Scholarship
The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. - Eleventh Amendment to the Constitution of the United States of America The thesis of this article is that the Eleventh Amendment, ratified in 1798, represented the incorporation into the American domestic constitutional law of federalism (specifically, the doctrine of state sovereign immunity) the late eighteenth-century international law rule that only states have rights against other states …
Unnecessary Privacy , Carl Felsenfeld
Unnecessary Privacy , Carl Felsenfeld
Faculty Scholarship
An individual's right to privacy in an electronic society has gained international attention as a booming new field. Its birth may roughly be marked to coincide with the birth of the Internet. The flow of information without limit or boundary has raised concerns with the consumer spokespeople in the Western World that personal information about them may flow as easily as general information about Machu Pichu, Keynesian economics, or Harvard College. The fear is that will cause individuals harm, ranging from personal embarrassment to a loss of civil liberties. Therefore, movements are developing to limit this flow of information. The …
Thoughts About Corporate Lawyers After Reading The Cigarette Papers: Has The "Wise Counselor" Given Way To The "Hired Gun"?", Bruce A. Green
Thoughts About Corporate Lawyers After Reading The Cigarette Papers: Has The "Wise Counselor" Given Way To The "Hired Gun"?", Bruce A. Green
Faculty Scholarship
No abstract provided.
Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib
Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib
Faculty Scholarship
Proposals for practical institutional reforms are notoriously absent from discussions about deliberative democracy. It is imperative to engage in the “nuts and bolts” debate of just what kinds of changes we discourse theorists or deliberative democrats want to effect. Here I would like to try to synthesize a reform proposal of my own based upon three major assumptions. Without argument, I assume a largely discourse-theoretic view of democracy that takes for granted the republican virtue of collective self-government as well as the Kantian claim that each citizen should be the author of his own laws. I further assume that our …
Lawyers As America's Governing Class: The Formation And Dissolution Of The Original Understanding Of The American Lawyer's Role, Russell G. Pearce
Lawyers As America's Governing Class: The Formation And Dissolution Of The Original Understanding Of The American Lawyer's Role, Russell G. Pearce
Faculty Scholarship
No abstract provided.
Comments On William Whitford's Paper On The Role Of The Jury (And The Fact/Law Distinction) In The Interpretation Of Written Contracts, Joseph Perillo
Comments On William Whitford's Paper On The Role Of The Jury (And The Fact/Law Distinction) In The Interpretation Of Written Contracts, Joseph Perillo
Faculty Scholarship
No abstract provided.
1977 Code Of Ethics For Arbitrators: An Outside Perspective, The Symposium: Ethics In A World Of Mandatory Arbitration, John D. Feerick
1977 Code Of Ethics For Arbitrators: An Outside Perspective, The Symposium: Ethics In A World Of Mandatory Arbitration, John D. Feerick
Faculty Scholarship
If ADR is to remain a vibrant part of the judicial landscape, it is essential that efforts further shape ethical standards and guidelines, as well as their practical connotations. The framers of the United States Constitution were very careful to establish a public justice system comprised of judges and juries operating within a framework of standards and protections designed to assure justice and fairness while simultaneously promoting public confidence. We should give similar care to developing processes through which we purportedly intend to accomplish similar objectives in resolving disputes and controversies. At the very least, the private nature of these …
Reflections On The Ethics Of Legal Academics: Law Schools As Mdps; Or, Should Law Professors Practice What They Teach Symposium: Ethics Of Law Professors, Bruce A. Green
Faculty Scholarship
[A member of the House of Commons said in Samuel Johnson's presence] that he paid no regard to the arguments of counsel at the bar of the House of Commons, because they were paid for speaking. JOHNSON. 'Nay, Sir, argument is argument. You cannot help paying regard to their arguments, if they are good, If it were testimony, you might disregard it, if you knew that it were purchased. There is a beautiful image in Bacon upon this subject: testimony is like an arrow shot from a long bow; the force of it depends on the hand that draws it. …
Testing Multiple Intelligences: Comparing Evaluation By Simulation And Written Exam , Ian Weinstein
Testing Multiple Intelligences: Comparing Evaluation By Simulation And Written Exam , Ian Weinstein
Faculty Scholarship
Written examinations play a key role in legal education. The LSAT is the most important factor in law school admissions. Once students enroll in law school, exams are used to evaluate and sort first year students. At most American law schools, a single, end of semester or end of year, timed, written, in class exam determines the grade in each first year class.' Although exams continue to play a major role throughout law school, once students are sorted at the end of first year it is often difficult for them to significantly change their place in the law school hierarchy. …
Limitation Of Shipowner Liability: Its American Roots And Some Problems Particular To Collision, Joseph Sweeney
Limitation Of Shipowner Liability: Its American Roots And Some Problems Particular To Collision, Joseph Sweeney
Faculty Scholarship
No abstract provided.
The Restatement (Third) And The Place Of Duty In Negligence Law, Benjamin C. Zipursky, John C.P. Goldberg
The Restatement (Third) And The Place Of Duty In Negligence Law, Benjamin C. Zipursky, John C.P. Goldberg
Faculty Scholarship
No abstract provided.
Multiracial Matrix: The Role Of Race Ideology In The Enforcement Of Antidiscrimination Laws, A United States-Latin America Comparison, Tanya K. Hernandez
Multiracial Matrix: The Role Of Race Ideology In The Enforcement Of Antidiscrimination Laws, A United States-Latin America Comparison, Tanya K. Hernandez
Faculty Scholarship
This Article examines the role of race ideology in the enforcement of antidiscrimination laws. Professor Hernandez demonstrates the ways in which the U.S. race ideology is slowly starting to resemble the race ideology of much of Latin America. The evolving U.S. race ideology is a multiracial matrix made up of four precepts: (1) racial mixture and diverse racial demography will resolve racial problems; (2) fluid racial classification schemes are an indicator of racial progress and the colorblind abolition of racial classifications an indicator of absolute racial harmony; (3) racism is solely a phenomenon of aberrant racist individuals; and (4) focusing …
E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg
E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg
Faculty Scholarship
For almost a decade, the United States and Europe have anticipated a clash over the protection of personal information. Between the implementation in Europe of comprehensive legal protections pursuant to the directive on data protection and the continued reliance on industry self-regulation in the United States, trans-Atlantic privacy policies have been at odds with each other. The rapid growth in e-commerce is now sparking the long-anticipated trans-Atlantic privacy clash. This Article will first look at the context of American e-commerce and the disjuncture between citizens' privacy and business practices. The Article will then turn to the international context and explore …
Yahoo And Democracy On The Internet, Joel R. Reidenberg
Yahoo And Democracy On The Internet, Joel R. Reidenberg
Faculty Scholarship
This article examines the French court order requiring Yahoo to prevent French Internet users from accessing images of Nazi memorabilia available for auction on the company's American web site. The article uses the French case to challenge the popular belief that an entirely borderless Internet favors democratic values. The article starts from the premise that while the Internet enables actors to reach a geographically dispersed audience, the Internet should not change the accountability of those actors for their conduct within national borders. The article shows that Yahoo's extensive business in France justifies the application of France's democratically chosen law and …
Designated Diffidence: District Court Judges On The Courts Of Appeals Papers Of General Interest, James J. Brudney, Corey Distlear
Designated Diffidence: District Court Judges On The Courts Of Appeals Papers Of General Interest, James J. Brudney, Corey Distlear
Faculty Scholarship
Since 1980, District CourtJudges, designated pursuant to federal statute, have helped decide over 75,000 court of appeals cases-nearly one of every five merits decisions. Although scholars and judges have warned that the presence of these visitors on appellate panels may undermine consistency, legitimacy, or collegiality, little empirical evidence exists related to such concerns. Working with an especially complete data set of labor law opinions, the authors found that district court visitors perform in a much more diffident fashion than their appellate colleagues. They contribute notably fewer majority opinions and dissents. In addition, their participations do not reflect their professional or …
Stalking Secret Law: What Predicts Publication In The United States Courts Of Appeals , Deborah J. Merritt, James J. Brudney
Stalking Secret Law: What Predicts Publication In The United States Courts Of Appeals , Deborah J. Merritt, James J. Brudney
Faculty Scholarship
Nearly four fifths of federal court of appeals opinions are unpublished. For more than 25 years, judges and scholars have debated the wisdom and fairness of this body of "secret" law. The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value. Despite continued controversy over unpublished opinions, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and multivariate statistical methods, we were able to identify the factors that predict publication. Some of those factors, such as …
Bar Association Ethics Committees: Are They Broken Conference On Legal Ethics: What Needs Fixing, Bruce A. Green
Bar Association Ethics Committees: Are They Broken Conference On Legal Ethics: What Needs Fixing, Bruce A. Green
Faculty Scholarship
This Article explores the work of bar association ethics committees. These are committees established by bar associations to give advice to lawyers about how to comply with the applicable rules of professional conduct. My question is, are these committees broken? Over the past two decades, several legal academics have concluded that they are. At its harshest, the critique is that ethics committees, typified by the American Bar Association's ("ABA") ethics committee, publish opinions that respond to trivial questions by providing poorly reasoned answers on which nobody can or does rely, and that the reason that the committees' opinions are inadequate …