Law Commons^™

Update - November 1987, Loma Linda University Center For Christian Bioethics

Update

In this issue:

-- Gerald Winslow joins LLU faculty
-- Thompson library opens September 25

[ Anencephalic Infants as Organ Donors: Ethical Issues ]
-- A Neonatologist's Concern
-- A Neonatologist's Reply
-- Should the Law be Changed?
-- Would Anencephalic Neonates be Citizens?
-- Cadaveric Donors Should be Dead

-- Ethics Center seeks $100,000

On Critical Legal Studies As Guerilla Warfare, Guyora Binder

Journal Articles

This sardonic 1987 essay defended Critical Legal Studies (CLS) against alarmist attacks from the right, claiming that CLS was dangerously subversive of the rule of law, and seemingly contradictory attacks from the left dismissing CLS as empty theorizing lacking any practical implications for reform. The essay responded that while CLS lacked proposals for legislative reform, it favored a highly participatory process of reform, drawn from experience in the student movements of the 1960’s. It distrusted state power and bureaucracy as engines of change, and favored community organization, civil society, and popular mobilization.

The Evolution Of Law: Continued, Alan Watson

Scholarly Works

In my book The Evolution of Law I sought to give a general theory of legal evolution based on detailed legal examples from which generalizations could be drawn, offering as few examples as were consistent with my case in order to present as clear a picture as possible. I was well aware as I was writing that some critics would regard the examples as mere isolated aberrations and for them and for other readers who, whether convinced of the thesis or not, would like further evidence, I want here to bring forward a few extra significant examples.

Reflections On The Significance Of The Sex/Gender System: Divorce Law Reform In New York, Isabel Marcus

University of Miami Law Review

No abstract provided.

The Role Of Liberal Political Culture In The Construction Of Middle America, Allen Hunter

University of Miami Law Review

No abstract provided.

Rape As A Legal Symbol: An Essay On Sexual Violence And Racism, Kristin Bumiller

University of Miami Law Review

No abstract provided.

Spirit-Murdering The Messenger: The Discourse Of Fingerpointing As The Law's Response To Racism, Patricia Williams

University of Miami Law Review

No abstract provided.

Excluded Voices: New Voices In The Legal Profession Making New Voices In The Law, Carrie Menkel-Meadow

University of Miami Law Review

No abstract provided.

The Strange Cases Of Alberta's Guarantees Acknowledgement Act A Study Of Choice-Of-Law Method, Vaughan Black

Dalhousie Law Journal

Fifty years ago John Willis wrote Two Approaches to the Conflict of Laws: A Comparative Study of the English Law and the Restatement of the American Law Institute. There he described two different - perhaps even opposed - conceptions of the problem posed by cases involving geographically complex facts. It is a goal of this article to assess the status and the vices and virtues of those two approaches in Canada today. Such a task is not a mere updating of Willis' piece, though that alone might be a useful exercise. In the first place, Willis' analysis takes place largely …

Twisting The Tourniquet Around The Pulse Of Conventional Legal Wisdom: Jurisprudence And Law Reform In The Work Of Robert A. Samek, Richard F. Devlin

Dalhousie Law Journal

The name Robert Samek first came to my attention in the summer of 1985 as part of a research project carried out under the auspices of the Law Reform Commission of Canada. I was struck by what at the time seemed to be a complete contrast in two of his publications; his book, The Legal Point of View and an article, "A Case for Social Law Reform". Although only a few years apart, it seemed impossible that the two works could have come from the pen of the same author: the former was traditional, opaque, dull, pedantic and repetitive; the …

The Construction Of Social Problems As Buttresses Of Inequalities, Murray Edelman

University of Miami Law Review

No abstract provided.

The Financial Institutions Regulatory And Interest Rate Control Act Of 1978, Federal Banking Agencies, And The Judiciary: The Struggle To Define The Limitation Of Cease And Desist Order Authority

Washington and Lee Law Review

No abstract provided.

The New World Of Patents Created By The Court Of Appeals For The Federal Circuit, Martin J. Adelman

University of Michigan Journal of Law Reform

The purpose of this Article is to outline the creation of this new circuit and to analyze its position on several substantive issues. Part I discusses the origin and power of the Federal Circuit. Part II analyzes the court's recent decisions on the issues of nonobviousness, infringement, inequitable conduct, patent misuse, and jury trials. This Article concludes that the Federal Circuit has in general performed well, but there are areas of patent law that must be refined for the court to further its intended goals.

Legality And Empathy, Lynne N. Henderson

Michigan Law Review

This article rejects the assumption that legality - by which I mean the dominant belief system about the Rule and role of Law - and empathy are mutually exclusive concepts. Failure to recognize the phenomenon of empathy explicitly in legal decisions more generally may result from a fear of the emotional realm as irrational, rather than a rational. It may stem from a belief that the divide between "subject" and "object" is uncrossable. The resistance to empathy may be attributable to the adversarial ideology acquired during law school understanding the adversary is not important unless it serves one's instrumental …

The Hermeneutics Of Indian Law, Robert A. Williams Jr.

Michigan Law Review

A Review of American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy by Charles F. Wilkinson

The Costs Of Complexity, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

The Judiciary In A State Of National Crisis With Special Reference To The South African Experience , John Dugard

Washington and Lee Law Review

No abstract provided.

A Rose By Any Other Word: Mutual Mistake In Sherwood V. Walker, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

Critical Legal Studies: The Death Of Transcendence And The Rise Of The New Langdells, Joan C. Williams

Faculty Scholarship

No abstract provided.

Dworkin And The Legal Process Tradition: The Legacy Of Hart & Sacks, Vincent A. Wellman

Law Faculty Research Publications

No abstract provided.

Securing Justice: A Response To William Bradford Reynolds, Michael A. Middleton

Faculty Publications

I doubt that William Bradford Reynolds would disagree that the self evident truths the Framers of the Declaration of Independence spoke about are as applicable today in the 1980's as they were over 200 years ago. I also doubt that Mr. Reynolds would disagree that despite the fact that black people were not considered human beings when the Constitution was framed, the fourteenth amendment to that great document was intended to bring them within the ambit of its protections. On these two basic propositions, I suspect, Mr. Reynolds and I would agree. Beyond that however, Mr. Reynolds advances a fundamentally …

The Counterrevolution Enters A New Era: Criminal Procedure Decisions During The Final Term Of The Burger Court, Charles Whitebread

Seattle University Law Review

This Article canvases the Burger Court’s counterrevolution in criminal procedure effectuated by a series of rulings that restructured the balance between the state and the criminally accused. The Article identifies the five major themes that have marked the Burger Court’s counterrevolution in criminal procedure and demonstrates how these themes were illustrated by various decisions this term during the 1985-86 term. After providing this background, the Article poses questions of how shifts in the composition of the Court may affect the trajectory of criminal procedure.

Sanctuary: The Legal Institution In England, Steven Pope

Seattle University Law Review

This Article discusses the institution of sanctuary that was recognized under the Common Law of England from at least the early Middle Ages until the Jacobean period, that is, from about the seventh to the seventeenth centuries A.D. This Article does not include a specific discussion of the modern American idea of sanctuary as the term is applied to the act of aiding an alien to remain illegally in the United States to escape political persecution in the alien’s own country. However, a consideration of the historical institution of sanctuary may shed light on the contemporary issue in two ways. …

California Federal Savings & (And) Loan Association V. Guerra: Supreme Court Affirms California's Efforts To Accommodate Pregnancy In Fair Employment Laws, 21 J. Marshall L. Rev. 181 (1987), Judith Gallo

UIC Law Review

No abstract provided.

Judicial Conscience And Natural Rights: A Reply To Professor Jaffa, Bruce Ledewitz

Seattle University Law Review

This Article replies to Professor Harry V. Jaffa’s article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” The Article focuses on the gap the author argues Professor Jaffa left between the consciousness of the Framers and the practice of judicial review today. The author argues that the understanding that Professor Jaffa brings to the intent of the Framers is one that opens up the Constitution to the call of justice, but the author critiques the utility of Professor Jaffa’s work in resolving the contentious constitutional issues of today, including abortion and capital punishment.

On Reason And Authority In Law's Empire, John M. Finnis

Journal Articles

Law's Empire will shape jurisprudence by its admirably resourceful attention to understanding a community's law "internally". It promotes reflective understanding of the practical argumentation constitutive of the attitude(s) in which that law subsists. But the book neglects some of practical understanding's resources of political and moral theory, and overestimates practical reasoning's power to identify options as the best and the right)

Silence As A Trial Strategy After Strickland And Cronic: Ineffective Assistance Of Counsel?Nic : The Ineffective Assistance Of Counsel?, Jo Ellen Silberstein

Touro Law Review

No abstract provided.

Law And Morality: A Kantian Perspective, George P. Fletcher

Faculty Scholarship

The relationship between law and morality has emerged as the central question in the jurisprudential reflection of our time. Those who call themselves positivists hold with H.L.A. Hart that calling a statute or a judicial decision "law" need not carry any implications about the morality of that statute or decision. Valid laws might be immoral or unjust. Those who resist this reduction of law to valid enactments sometimes argue, with Lon Fuller, that moral acceptability is a necessary condition for holding that a statute is law; or, with Ronald Dworkin, that moral principles supplement valid enactments as components of the …

Foreword: On Jaffa, Lincoln, Marshall, And Original Intent, Lewis E. Lehrman

Seattle University Law Review

This Foreword introduces the article to follow written by Harry V. Jaffa, scholar of Abraham Lincoln’s political philosophy. The Foreward provides background material necessary to contextualize the ongoing debate surrounding constitutional interpretation emphasizing original intent addressed in Jaffa's article.

Professor Harry V. Jaffa Divides The House: A Respectful Protest And A Defense Brief, Robert L. Stone

Seattle University Law Review

This Article replies to Professor’ Jaffa’s article, “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?,” and book, The Crisis of the House Divided. The Article argues that Professor Jaffa’s method throughout his indictment of legal scholars has three flaws. First, the Article argues that Professor Jaffa takes statements of sensible political compromises-such as support for judicial restraint, British traditions, and local self-government-and treats them as if they were philosophical statements. Second, the author contends that Professor Jaffa assembles a composite indictment, which in law is appropriately applied only to an indictment against …