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Full-Text Articles in Law

Virtual Logrolling: How The Court, Congress, And The States Multiply Rights, William N. Eskridge Jr., John Ferejohn Jan 1995

Virtual Logrolling: How The Court, Congress, And The States Multiply Rights, William N. Eskridge Jr., John Ferejohn

Faculty Scholarship Series

Mary Ann Glendon maintains that the United States has created too many legal rights in the last two generations. She argues, to an increasingly receptive audience, that this multiplication of rights threatens both national values and efficiency. The critique of rights can be seen as containing both normative and positive aspects. The expansion of rights-oriented discourse is said by some to impoverish political debate by posing public issues in rigid and inflexible terms that limit our capacity to find solutions. The creation of new rights is also thought to diminish our commitment to older and perhaps more fundamental rights. Moreover ...


The Many Faces Of Sexual Consent, William N. Eskridge Jr. Jan 1995

The Many Faces Of Sexual Consent, William N. Eskridge Jr.

Faculty Scholarship Series

Returning from time to time to the Califia short story, this Article explores the role of sexual consent in American law. I first examine the many faces law finds for consent or its opposite; these many faces reveal the impossibility of divorcing consent from context and social policy. For this reason, the very meaning of consent has changed markedly in the last generation in response to women's increased power. My thesis is that the law of consent ought to and probably will change in other ways now that gay power joins and sometimes stands in opposition to women's ...


Steadying The Court's "Unsteady Path": A Theory Of Judicial Enforcement Of Federalism, William N. Eskridge Jr., Jenna Bednar Jan 1995

Steadying The Court's "Unsteady Path": A Theory Of Judicial Enforcement Of Federalism, William N. Eskridge Jr., Jenna Bednar

Faculty Scholarship Series

Like the Supreme Court's separation of powers jurisprudence, its federalism jurisprudence might, uncharitably, be described as "a mess." The Court's decisions setting forth jurisdictional limitations on national power have waffled famously. Taken as a whole, they flunk requirements of either good law or good policy: The decisions are inconsistent with constitutional text and with one another, and they lack a persuasive normative theory to justify the first inconsistency or to resolve the second. These difficulties are rehearsed in the six different opinions the Justices rendered in United States v. Lopez, where a fractured Court invalidated a federal statute ...


The Criminal Jury In Our Time, Kate Stith Jan 1995

The Criminal Jury In Our Time, Kate Stith

Faculty Scholarship Series

In this essay, I consider the present discomfort with the jury in the context of our larger legal discourse. There is much about the jury (civil as well as criminal, though I am here concerned only with the latter) that does not fit comfortably into our modem constitutional and political culture. Many preeminent constitutional values of the founding period-private liberty, federalism, and local control-were well served by a requirement of jury verdicts in criminal trials. Over the past two hundred years, these values have been challenged, if not eclipsed, by competing values. Some essential characteristics of the jury--or, at least ...


Statistical Trends Can Distract And Mislead: A Reply To Professor Loken, Steven B. Duke Jan 1995

Statistical Trends Can Distract And Mislead: A Reply To Professor Loken, Steven B. Duke

Faculty Scholarship Series

In his response to Drug Prohibition: An Unnatural Disaster. Professor Loken avoids systematic confrontation with the wide range of our drug war costs and confines his disputation to my proposal to legalize and regulate hard drugs. There is thus less disagreement between us than might casually appear, for I acknowledge that the wisdom of legalization, as opposed to drastic de-escalation, is debatable with respect to drugs other than marijuana.


A Constitutional Accident Waiting To Happen, Akhil Reed Amar Jan 1995

A Constitutional Accident Waiting To Happen, Akhil Reed Amar

Faculty Scholarship Series

In the category, Most Mistaken Part of the Current Constitution, I nominate the electoral college. The ingenious scheme of presidential selection set up by Article II and refined by the Twelfth Amendment was a brilliant eighteenth century invention that makes no sense today. Our system of selecting Presidents is a constitutional accident waiting to happen.


Institutions And Practices For Restoring And Maintaining Public Order, W. Michael Reisman Jan 1995

Institutions And Practices For Restoring And Maintaining Public Order, W. Michael Reisman

Faculty Scholarship Series

In the wake of the atrocities committed in Cambodia, southern Sudan, the former Yugoslavia, Rwanda and Haiti, many in the international community have called for the creation of ad hoc or standing international criminal courts to deal with some types of international delicts. Courts are indispensable institutions in many domestic criminal and civil systems, and any polity, no matter how structured, must have arrangements, of varying degrees of institutionalization, to apply the law to concrete cases. But lest we fall victim to a judicial romanticism in which we imagine that merely by creating entities we call "courts" we have solved ...


Covert Action, W. Michael Reisman Jan 1995

Covert Action, W. Michael Reisman

Faculty Scholarship Series

In what is now seen as the twilight of the Cold War, James E. Baker and I published a book entitled Regulating Covert Action: Practices, Contexts, and Policies of Covert Coercion Abroad in International and American Law. A variety of covert activities were commonly being conducted in international politics in the use of military, economic, diplomatic, and propaganda instruments. Even when certain important phases in the applications of any of these instruments to particular cases were manifestly overt, they were often preceded and followed by covert phases. One general popular response was that all covert activity, as distinct from intelligence ...


Haiti And The Validity Of International Action, W. Michael Reisman Jan 1995

Haiti And The Validity Of International Action, W. Michael Reisman

Faculty Scholarship Series

In December 1990, after decades of dictatorship, the Haitian people overwhelmingly elected Jean-Bertrand Aristide as President. Every aspect of the election was monitored by international organizations and confirmed as "free and fair." Within months, the army, an ill-trained force of some five thousand men, seized power, expelled Aristide, and brutally suppressed popular protest. The Organization of American States and the United Nations Security Council condenmed the coup and its aftermath and ordered economic sanctions to dislodge the military. The sanctions failed. On July 31, 1994, the Security Council, acknowledging the gravity of the situation and recognizing that an "exceptional response ...


Protecting Indigenous Rights In International Adjudication, W. Michael Reisman Jan 1995

Protecting Indigenous Rights In International Adjudication, W. Michael Reisman

Faculty Scholarship Series

From the time that proto-human bands roamed the wilds, "within one of the most common geopolitical patterns in world history,"' organized peoples have invaded inhabited territories and tried to make themselves dominant. When they were successful, they developed elaborate religious, moral or legal systems that celebrated and validated their control. The "natives," "aborigines," or "indigenous peoples" were the ones who were there and lost; they either resisted, or were denied, assimilation and survived with a distinct, but not necessarily intact, cultural identity. The term "indigenous rights" has recently come to refer, within the larger system of the international protection of ...


Sentencing Women, Judith Resnik Jan 1995

Sentencing Women, Judith Resnik

Faculty Scholarship Series

The Federal Sentencing Reporter has provided an important service by publishing this symposium, Gender and Sentencing. I am honored to participate by offering a few introductory comments.

A thoughtful group of commentators tum our attention to the distinctive issues facing women who are defendants in the federal criminal justice system. While many may aspire to a legal system in which gender has no relevance, we live in a world in which gender, race, and ethnicity structure so many aspects of our lives that one cannot but ask: What, if any, are the effects of gender on women who are defendants ...


Aggregation, Settlement, And Dismay, Judith Resnik Jan 1995

Aggregation, Settlement, And Dismay, Judith Resnik

Faculty Scholarship Series

Richard Marcus and Jack Coffee argue that federal judges are relying on the class action rule (Federal Rule of Civil Procedure 23) to revamp both substance and procedure. Both papers represent attempts to link the efforts of lawyers and judges across an array of cases and to provide a coherent picture of the emerging new rules and doctrine, both substantive and procedural. Coffee and Marcus strive to place a series of federal mass tort class action litigations in a broader context, in an effort to understand a phenomenon rather than a particular case.

As Marcus explains, while Congress has not ...


History, Jurisdiction, And The Federal Courts: Changing Contexts, Selective Memories, And Limited Imagination, Judith Resnik Jan 1995

History, Jurisdiction, And The Federal Courts: Changing Contexts, Selective Memories, And Limited Imagination, Judith Resnik

Faculty Scholarship Series

A good deal of discussion, from a variety of vantage points, addresses the need to "reform" (a word translated in a myriad of ways) the federal courts. But commonplace predicates in this discussion are problematic because many of them fail to take into account how much the context has changed.

First, the often-invoked description of the federal courts as comprised of a three-tiered pyramid of courts fails to capture the sprawling structure into which the federal judicial system, consisting of courts, agencies, and private-affiliated decision makers, has evolved. Second, that description does not comprehend the large-scale, aggregate litigations to which ...


Procedural Innovations, Sloshing Over: A Comment On Deborah Hensler, A Glass Half Full, A Glass Half Empty: The Use Of Alternative Dispute Resolution In Mass Personal Injury Litigation, Judith Resnik Jan 1995

Procedural Innovations, Sloshing Over: A Comment On Deborah Hensler, A Glass Half Full, A Glass Half Empty: The Use Of Alternative Dispute Resolution In Mass Personal Injury Litigation, Judith Resnik

Faculty Scholarship Series

Deborah Hensler has provided us with new understanding of contemporary procedural innovations. In her thoughtful essay, Dr. Hensler offers an overview of both the history of mass torts and the current methodologies of decisionmaking. She then provides a sustained critique that these methods have not been focused on "enhanc[ing] the parties' control over litigation outcomes or process." In making her argument, Dr. Hensler narrows the definition of alternative dispute resolution ("ADR"). She rejects the common usage of the phrase as an umbrella that expansively embraces procedures ranging from judicial settlement efforts to court-annexed arbitration and summary jury trials. In ...


Multiple Sovereignties: Indian Tribes, States, And The Federal Government, Judith Resnik Jan 1995

Multiple Sovereignties: Indian Tribes, States, And The Federal Government, Judith Resnik

Faculty Scholarship Series

Federal law about Indian tribes tends to be considered separately from the body of law about federal-state relations. But the problems of coordination, cooperation, deference, and preclusion—central to the law of federalism—are also pivotal when contemplating the authority of Indian tribes and their courts. At issue are the respective arenas of Congress and the executive branch, as well as the allocation of power among tribes, states, and the federal government, the attributes and prerogatives of sovereigns, and the deference and comity entailed in intercourt relationships.

In the context of either state-federal or tribal-federal law, the task is to ...


Commentary: Policy Implications, Geoffrey C. Hazard Jr. Jan 1995

Commentary: Policy Implications, Geoffrey C. Hazard Jr.

Faculty Scholarship Series

The findings in "Lawyer Distress" are illuminating and, as the authors of this
very important study indicate, distressing. They show that a high percentage
of lawyers, relative to the general population, suffer from significant
psychological disorder and disposition to alcoholism.


Law, Morals, And Ethics, Geoffrey C. Hazard Jr. Jan 1995

Law, Morals, And Ethics, Geoffrey C. Hazard Jr.

Faculty Scholarship Series

These days the normative coherence and integrity of the law is open to
searching criticism from various directions. This is true of all bodies of
law-eonstitutional law, contract law, tort law, and the law governing the
professions such as our own. Any intelligible criticism of law requires a
normative framework of its own. That is, normative criticism requires some set
of normative concepts in terms of which to carry the discussion forward. Many
critics are content to use general epithets such as "unjust," "exploitive," or
"inefficient." Others project more sustained critical analyses. Whether general
or specific, however, critical analysis must ...


The Moral Significance Of Nationalism, Lea Brilmayer Jan 1995

The Moral Significance Of Nationalism, Lea Brilmayer

Faculty Scholarship Series

Given the current world situation, it is certainly no surprise that philosophers
and political theorists are paying increasing attention to the topic
of nationalism. It is not an easy subject to study, in part because the word
means such different things to different people. There are many areas of
disagreement. What counts as a "nation"? Is a nation defined by its language?
by its culture? by ethnicity? What is the relationship between nationalism
and the state? What are the historical origins of nationalism?


Transforming International Politics: An American Role For The Post Cold War, Lea Brilmayer Jan 1995

Transforming International Politics: An American Role For The Post Cold War, Lea Brilmayer

Faculty Scholarship Series

Most of us find the events of the last five or six years nothing short
of astounding. It is not simply that the Cold War has ended, but that it
ended so fast and with so little resistance. Already it has become difficult
to explain to students in international relations classes the attitudes
of authors who wrote just eight or ten years ago. Some of these
students were only starting college or were still in high school when
the Berlin Wall came down, and in the years prior to that, the Soviet
Union had already started its fundamental transformation. l ...


What’S The Matter With Selective Intervention?, Lea Brilmayer Jan 1995

What’S The Matter With Selective Intervention?, Lea Brilmayer

Faculty Scholarship Series

"Nothing," most Americans would probably respond. Most Americans
would claim that it is for the United States to decide for itself whether it wants
to engage or not in conflicts that arise around the world, consulting only its
own people and its own preferences. Most Americans find nothing wrong with
the United States involving itself in the Persian Gulf but not in Yugoslavia; in
Haiti but not Liberia; in Somalia but not Rwanda. Perhaps the patterns of
American engagement we see are morally defensible; perhaps they are not. But
whether or not it would actually be possible to morally reconcile ...


The Evolution Of United Nations Peacekeeping, Ruth Wedgwood Jan 1995

The Evolution Of United Nations Peacekeeping, Ruth Wedgwood

Faculty Scholarship Series

Does multilateralism deserve moral suspicion? It is a well-put question, worth facing prior to our inquiry into peacekeeping. Some of the classical conditions of peacekeeping will be newly explicable; the classical limits to peacekeeping fit these moral concerns.

Traditionally, multilateralism has been challenged as a road to lassitude, inaction and self-defeat. The suggestion here is different. Professor Fernando Tesón has argued that multilateralism may fall prey to the moral short-sightedness of a purely self-regarding decision. Indeed, in international law circles, an enthusiasm for multilateralism sometimes brings a suspension of judgment. Even international lawyers who admit the deep interweaving of law ...


Interpreting The Constitution: Is The Intent Of The Framers Controlling? If Not, What Is?, Boris I. Bittker Jan 1995

Interpreting The Constitution: Is The Intent Of The Framers Controlling? If Not, What Is?, Boris I. Bittker

Faculty Scholarship Series

In Brown v. Board ofEducation, decided in 1954, the Supreme
Court held that public school segregation deprived black pupils
of "equal educational opportunities" in violation of the Equal
Protection Clause of the Fourteenth Amendment: "No State shall
... deny to any person within itsjurisdiction the equal protection
of the laws." In reaching this conclusion, however, the Court
said nothing about whether the Framers of the Fourteenth
Amendment-the Congress that drafted the Amendment in
1866 and the States that ratified it in 1866-69-intended to outlaw
segregation in the public schools; instead, the Court treated their
intent as irrelevant, observing that "we cannot ...


Deposit Insurance, The Implicit Regulatory Contract, And The Mismatch In The Term Structure Of Banks' Assets And Liabilities, Jonathan R. Macey, Geoffrey P. Miller Jan 1995

Deposit Insurance, The Implicit Regulatory Contract, And The Mismatch In The Term Structure Of Banks' Assets And Liabilities, Jonathan R. Macey, Geoffrey P. Miller

Faculty Scholarship Series

Professors Macey and Miller explore the relationship between deposit insurance and the mismatch in the term structure of commercial banks I assets and liabilities. After critiquing the traditional regulatory hypothesis, which posits that banks have incentives to.fund long-term assets with short-term liabilities because government-sponsored deposit insurance enhances bank credit and subsidizes short-term liabilities, they use public choice theory to argue that a modified version of the regulatory hypothesis is the best explanation for the mismatch in the term structure of banks I assets and liabilities. Finally, they argue that embracing the regulatory hypothesis does not imply acceptance of the ...


A World Transformed, Harold Hongju Koh Jan 1995

A World Transformed, Harold Hongju Koh

Faculty Scholarship Series

Two decades ago, while Richard Nixon was President and the Vietnam War still raged, ten energetic Yale law students founded Yale Studies in World Public Order. The prologue to their first issue, painstakingly typed and mulitlithed, announced thejournal's commitment "to publishing articles which contribute to the understanding of [a] highly interrelated global process."


Reading The Constitution As Spoken, Jed Rubenfeld Jan 1995

Reading The Constitution As Spoken, Jed Rubenfeld

Faculty Scholarship Series

Constitutional law, which speaks today to almost everything, has nothing to say on one subject. It has no account of its own interpretive method.

The truth is that most of us don't know if the Supreme Court is "interpreting" the Constitution at all anymore. Or whether it ever did. Or what exactly it would mean for the Court to do so. We have in this country a very successful practice of constitutional interpretation coupled with a thoroughgoing cynicism about its coherence and legitimacy.


Free Proof And Its Detractors, Mirjan R. Damaska Jan 1995

Free Proof And Its Detractors, Mirjan R. Damaska

Faculty Scholarship Series

The idea that the law should not assign probative weight to items of information, or degrees of credibility to its bearers, is widely extolled as one of the cornerstones of enlightened factfinding in adjudication. Despite momentous changes that have occurred in the administration ofjustice in this century, the idea continues to command widespread allegiance - especially in the area of criminal procedure. This is not to say, however, that no challenges appeared to the idea in recent years. The first challenge stems from the increased employment over the past few decades of exclusionary rules of evidence. Their application generates frequently overlooked ...


Congressional Powers And Federal Judicial Burdens, Dennis E. Curtis Jan 1995

Congressional Powers And Federal Judicial Burdens, Dennis E. Curtis

Faculty Scholarship Series

Professor Beale's Article, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, is a well-documented plea for the conservation of federal judicial resources in the face of a burgeoning criminal caseload, caused at least in part by the creation of new federal crimes. The "too many" in the title of Professor Beale's Article refers to the current plethora of federal criminal cases that threaten (in the view of many) a docket crisis in the federal courts. The "too few" refers to the ability of federal prosecutors to pursue only a ...


Paint-By-Numbers Tax Lawmaking, Michael J. Graetz Jan 1995

Paint-By-Numbers Tax Lawmaking, Michael J. Graetz

Faculty Scholarship Series

Although their meaning and contours have long been controversial, the general criteria for evaluating changes in tax law enjoy both stability and consensus. At least since Adam Smith, there has been virtually universal agreement that the nation's tax law should be fair, economically efficient, and simple to comply with and to administer. Tax law changes should be designed to make the law more equitable, easier to comply with, more conducive to economic growth, and less likely to interfere with private economic decisionmaking.

Precisely what these criteria imply for policymaking is controversial, however. Fairness is often said to require that ...


A Rejoinder, Jonathan R. Macey Jan 1995

A Rejoinder, Jonathan R. Macey

Faculty Scholarship Series

In a rare moment of self-restraint, I resolved not to bother to write a comment to David Ratner's spirited but unconvincing reply to my earlier article in the Cardozo Law Review. Since Ratner's response contained no defense whatsoever of the work of the Securities and Exchange Commission ("SEC"), no criticism whatsoever of my general theory of agency obsolescence, and no theory of its own to defend the SEC, it seemed to me at first that the best course of action was to allow Ratner's reply to serve as its own refutation.


Path Dependence, Public Choice, And Transition In Russia: A Bargaining Approach, Jonathan R. Macey, Enrico Colombatto Jan 1995

Path Dependence, Public Choice, And Transition In Russia: A Bargaining Approach, Jonathan R. Macey, Enrico Colombatto

Faculty Scholarship Series

The transition process from communism in Eastern Europe is probably the most important economic challenge in the last twenty years. Some five years have elapsed since the political events that started this process, and in a limited number of countries (the Czech Republic, Slovenia, and the Baltic Republics) transition seems to be heading towards success; in others the prospects remain uncertain (as in Poland) or worrisome (as in Russia). Indeed, as has been observed about the Russian situation, the plausible possible futures for Russia "range from an enticing vision of society A la Milton Friedman to one more in the ...