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Response To Commentators, Robert C. Post Jan 2000

Response To Commentators, Robert C. Post

Faculty Scholarship Series

Academic life contains few pleasures more intense than writing for

an audience as astute and as generous as the four commentators to my

Brennan Lecture. As this Response demonstrates, I have learned much

from them, particularly regarding the logical relationship between the

dominant conception and the sociological account. What I chiefly wish to

stress, however, is my deepest gratitude for their constructive and discerning

insights.

Tom Grey, for example, makes an excellent and useful point about the

potential tension between the rule of law and what I call in my Lecture the

"sociological approach."' Grey is entirely correct to stress ...


Regulating Consumer Bankruptcy: A Theoretical Inquiry, Alan Schwartz, Barry Adler, Ben Polak Jan 2000

Regulating Consumer Bankruptcy: A Theoretical Inquiry, Alan Schwartz, Barry Adler, Ben Polak

Faculty Scholarship Series

This paper uses a principal/agent framework to analyze consumer bankruptcy. The bankruptcy discharge partly insures risk-averse borrowers against bad income realizations but also reduces the borrower’s incentive to avoid insolvency. Among our results are the following: ( a ) high bankruptcy exemptions increase bankruptcy insurance but at the cost of reducing the borrower’s incentives to stay solvent; ( b ) reaffirmations—renegotiations—have ambiguous efficiency effects in general, but the right to renegotiate is especially valuable for relatively poor persons; ( c ) giving consumers the ex post choice regarding which bankruptcy chapter to use also provides more insurance but, by making bankruptcy ...


Life's Work, Vicki Schultz Jan 2000

Life's Work, Vicki Schultz

Faculty Scholarship Series

In this Essay, Professor Schultz develops a vision of social justice grounded in the redistribution and restructuring of paid work. Work is a site of deep self-formation offering rich opportunities for human flourishing or devastation. Although society has been slow to understand the significance of paid work to women, research suggests that women who work for a living are better off than other women in many ways. Currently, however, transformations in the structure of work are increasing insecurity and deepening inequality for all but those at the top; many once privileged workers now face conditions akin to those that women ...


Reconciling Theory And Doctrine In First Amendment Jurisprudence, Robert Post Jan 2000

Reconciling Theory And Doctrine In First Amendment Jurisprudence, Robert Post

Faculty Scholarship Series

The twentieth century has seen the birth and development of the doctrine

of the First Amendment's free speech clause. In its current state, freespeech

jurisprudence is hampered by coexisting but conflicting First

Amendment theories and doctrines. In this Essay, Professor Post examines

these conflicts. He traces the development of two primary First Amendment

theories: the theory of the marketplace of ideas, exemplified by Justice

Holmes' dissenting opinion in Abrams v. United States; and the theory of

democratic speech, articulated most notably by Alexander Meiklejohn.

After discussing the doctrinal implications of these theories and noting that

courts have not followed ...


Karl Llewellyn And The Origins Of Contract Theory, Alan Schwartz Jan 2000

Karl Llewellyn And The Origins Of Contract Theory, Alan Schwartz

Faculty Scholarship Series

Karl Llewellyn was America's leading legal realist, academic law reformer, and contract law theorist. There are extensive analyses of Llewellyn's performance as a realist and reformer, but his contracts scholarship, written between 1925 and 1940, has not been seriously analyzed. 1 As an example, William Twining's famous study answered the question of what of Llewellyn should be read today as follows: "A number of essays on specific topics are still of value, and this is particularly the case with most of the articles on contract and commercial law of the middle period." But Twining did not analyze ...


The Epistemic Contract Of Bisexual Erasure, Kenji Yoshino Jan 2000

The Epistemic Contract Of Bisexual Erasure, Kenji Yoshino

Faculty Scholarship Series

In this article, Professor Kenji Yoshino seeks to explain why the category of bisexuality has been erased in contemporary American political and legal discourse. He first argues that the invisibility of bisexuality relative to homo- sexuality does not reflect the incidences of those orientations in the population. Defining bisexuality as the possession of more than incidental desire for both sexes, Yoshino shows that the major sexuality studies demonstrate that the inci- dence of bisexuality is in fact greater than or comparable to the incidence of homosexuality. Yoshino explains the erasure of bisexuality by positing that both self-identified heterosexuals and self-identified ...


Cyber-Nations, Ruth Wedgwood Jan 2000

Cyber-Nations, Ruth Wedgwood

Faculty Scholarship Series

The cultural project of nationalism embraces modem technology—the ability to broadcast at a distance the resonant symbols of power and purpose, permitting governments to address citizens remote from the center and detached from the state's administrative representatives. The creed of shared burden and ambitions, the exhortations of a charismatic leader, the iconography of flag and battle, the claim of danger and challenge—the central symbols of nationalism—are brought forward through technology.

But the new technology of the Internet allows a more whimsical speculation for the utopians among us. If a liberal constitutional state depends on shared commitment ...


Book Review: Responsibility And Control: A Theory Of Moral Responsibility, Gideon Yaffe Jan 2000

Book Review: Responsibility And Control: A Theory Of Moral Responsibility, Gideon Yaffe

Faculty Scholarship Series

John Fischer and Mark Ravizza’s book Responsibility and Control: A Theory of Moral Responsibility is an attempt to develop a unified account of moral responsibility for actions, omissions and consequences that takes seriously “Frankfurt examples” and their many variations. (Roughly, a “Frankfurt-example” is one in which an agent acts voluntarily, and seems responsible for her action, despite the fact that some unactualized force waits in the wings to ensure that she so act should she begin to act differently. The book is not an unqualified success, but it is a qualified success for it both presents a theory of ...


Fear And Fairness In The City: Criminal Enforcement And Community Perceptions Of Fairness, Richard R.W. Brooks Jan 2000

Fear And Fairness In The City: Criminal Enforcement And Community Perceptions Of Fairness, Richard R.W. Brooks

Faculty Scholarship Series

Blacks in central city neighborhoods are more likely than any other group to perceive crime as a problem. They have the highest rates of violent crimes victimization and they are seven times more likely to be murdered than whites. Grim statistics like these, along with impassioned personal accounts of violent encounters and heroic daily efforts to avoid such encounters, have led race and criminal law scholars, such as Randall Kennedy, to express a seemingly natural though unconventional claim: Frustrated and overwhelmed by gangs, drugs and crime, blacks in high-crime neighborhoods welcome disproportionately tough criminal sanctions and expanded police discretion. This ...


The Uncertain Career Of Executive Power, Ruth Wedgwood Jan 2000

The Uncertain Career Of Executive Power, Ruth Wedgwood

Faculty Scholarship Series

Essays in constitutional law are often about something more than the historical texts at hand. Professor Michael Glennon's 1988 essay—Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright?—was a heartfelt effort to challenge the existence of an independent foreign affairs power in the Presidency, especially in the deployment and use of military force. Its argument was shaped around the controversy of the day—the effort by the Reagan White House in "Iran Contra" to deliver covert aid to anti-communist rebels in Nicaragua despite Congress's bar to American involvement. For any earthly observer, a ...


Conflicts Of Interest In Representation Of Public Agencies In Civil Matters, Geoffrey C. Hazard Jr. Jan 2000

Conflicts Of Interest In Representation Of Public Agencies In Civil Matters, Geoffrey C. Hazard Jr.

Faculty Scholarship Series

There has been only sporadic attention addressed to the problem
of conflicts of interest in representation of public agencies in civil
matters. The academic literature, for the most part, addresses general
issues but does not engage concrete problems. There are several
examinations of prosecutor ethics but few that have gone beyond the
issues addressed in the ABA Standards Relating to Prosecution.


Equality And Affiliation As Bases For Ethical Responsibility, Geoffrey C. Hazard Jr. Jan 2000

Equality And Affiliation As Bases For Ethical Responsibility, Geoffrey C. Hazard Jr.

Faculty Scholarship Series

The strong Western tradition, dominant in the United States and increasingly
accepted in the modem democratic era, is to regard equality of human beings as the touchstone ofethical responsibility. This approach derives to an important extent from Christian teaching and belief. Christianity as revealed in the parables discounted the significance of wealth and position, and Jesus specifically said that the meek would inherit the earth. Another important source of the tradition is classic Greek philosophy, particularly philosophy addressing obligations within the polis-the city-state that was the basic unit of society in ancient Greece. The citizens of the polis were the ...


Destabilizing Due Process And Evolutive Equal Protection, William N. Eskridge Jr. Jan 2000

Destabilizing Due Process And Evolutive Equal Protection, William N. Eskridge Jr.

Faculty Scholarship Series

One way to think about the relationship between the Due Process and Equal Protection Clauses of the Fourteenth Amendment is to view due process as backward-looking (evaluating a law in light of its historical precedents), and equal protection as forward-looking (evaluating a law in light of its utility for future social projects). Professor Eskridge challenges this contrast. He shows that such a contrast is supported by neither the text and history of the Fourteenth Amendment nor by the Supreme Court's precedents applying the Due Process and Equal Protection Clauses. Due process is just as often destabilizing as equal protection ...


Religious Freedom As If Family Matters, Stephen L. Carter Jan 2000

Religious Freedom As If Family Matters, Stephen L. Carter

Faculty Scholarship Series

The subject of my lecture is parents, religion, and the schools. I will seek to sketch, and partly defend, a controversial proposition about the relationship among the three. My goal is less to persuade than to provoke. I want us all to think about the relationship in ways a little bit different from the mainstream.

Let me begin by telling you a story involving my own family.

My wife and I have two wonderful children. After my book, The Culture of Disbelief, was published in 1993, the publisher sent me on a book tour. One morning, I found myself in ...


Can Law Schools Teach Students To Do Good? Legal Education And The Future Of Legal Services For The Poor, Stephen Wizner Jan 2000

Can Law Schools Teach Students To Do Good? Legal Education And The Future Of Legal Services For The Poor, Stephen Wizner

Faculty Scholarship Series

Is it possible for law schools to teach students to do good? Should they try? Do law schools have a role to play in addressing the crisis in legal services for the poor? If so, what role?

Our society is one in which the great majority of citizens of modest means cannot afford the services of a lawyer in resolving their legal problems. A decade ago a national survey found that approximately eighty percent of the legal problems of the poor were handled without legal assistance. Surely, recent reductions and restrictions in government-funded legal services can only have made the ...


Accommodation Mandates, Christine Jolls Jan 2000

Accommodation Mandates, Christine Jolls

Faculty Scholarship Series

The history of employment law has witnessed a move from mandates directed to workers as a whole, such as workers' compensation, to mandates directed to particular, identifiable groups of workers, such as the reasonable accommodation mandate of the Americans with Disabilities Act. These newer "accommodation mandates" are ordinarily analyzed using an economic framework developed for mandates directed to workers as a whole. However, this framework yields misleading and incorrect conclusions when applied to accommodation mandates. This Article offers a new framework for analyzing accommodation mandates. The framework generates testable predictions about the effects of these mandates-predictions that are largely confirmed ...


Tribute To Joseph Goldstein, Guido Calabresi Jan 2000

Tribute To Joseph Goldstein, Guido Calabresi

Faculty Scholarship Series

About forty-five years ago, in my second year as a student at the Yale Law School, an extraordinary group of new faculty members arrived. They included Alexander Bickel, Abe Goldstein, Leon Lipson, Ellen Peters, Harry Wellington, and Joe Goldstein. Together with those who had preceded them by a year, like Louis Pollak and Quinton Johnstone, there were fourteen or so new arrivals. I believed then, and continue to think now, that no law school has ever had so remarkable an influx and so magnificent a burst of creative energy. The new kids—for most were very young—were brilliant, testy ...


Two Functions Of Formalism: In Memory Of Guido Tedeschi, Guido Calabresi Jan 2000

Two Functions Of Formalism: In Memory Of Guido Tedeschi, Guido Calabresi

Faculty Scholarship Series

Some thirty years ago, I gave a lecture on the Italian legal system. It was meant to be an informal explanation, to an American—primarily university—audience, of some aspects of Italian jurisprudence that might seem puzzling to those accustomed to U.S. views of law. In a recent article, Professor Cass Sunstein referred to my unpublished talk, and the editors of The University of Chicago Law Review asked me to send them a copy for citechecking purposes. After reading the essay they decided that it was worth publishing and urged me to let them do so. I agreed. To ...


Enforcing Civility And Respect: Three Societies, James Q. Whitman Jan 2000

Enforcing Civility And Respect: Three Societies, James Q. Whitman

Faculty Scholarship Series

It has become common, over the last decade or so, to plead for more "civility" and "respect" in American daily life. Some of this has come from politicians. Mayor Giuliani of New York, in particular, has been pushing the idea that more everyday civility can lower the urban crime rate.' Newspapers and newsmagazines have suggested the same thing. At the same time, civility has become a favorite subject for academics, with books and articles written by philosophers, sociologists, historians, linguists, and lawyers.' Two special topics have particularly engaged the attention of law professors: hate speech and sexual harassment. More "civility ...


Eritrea-Yemen Arbitration (Award, Phase Ii: Maritime Delimitation), W. Michael Reisman Jan 2000

Eritrea-Yemen Arbitration (Award, Phase Ii: Maritime Delimitation), W. Michael Reisman

Faculty Scholarship Series

On December 17,1999, theArbitral Tribunal (Tribunal), convoked byEritrea andYemen in the Arbitration Agreement of October 3, 1996, and comprisingJudges Rosalyn Higgins and Stephen Schwebel, appointed byEritrea, Dr. Ahmed E1-Kosheri and the late Keith Highet, appointed by Yemen, and Sir RobertJennings, presiding, delivered the second award in a process that the parties had elected to conduct in two stages. In the first stage, the Tribunal addressed territorial sovereignty and the scope of the dispute. The second and final award, reviewed here, addressed maritime delimitation. Unfortunately, the pleadings have not been published, and the student must rely on the Tribunal's ...


Discrimination In The Eyes Of The Law: How “Color Blindness” Discourse Disrupts And Rationalizes Social Stratification, Reva B. Siegel Jan 2000

Discrimination In The Eyes Of The Law: How “Color Blindness” Discourse Disrupts And Rationalizes Social Stratification, Reva B. Siegel

Faculty Scholarship Series

I am quite pleased to have this opportunity to comment on Robert Post's provocative Lecture, Prejudicial Appearances. Post's effort to distinguish the "dominant conception" of antidiscrimination law from what he presents as a "sociological" account of the field intersects in striking ways with my own efforts to analyze status relations and their disestablishment from a sociohistorical vantage point. In this Response, I would like to identify some key points of similarity and difference in our accounts, with a view to furthering consideration of what we might learn from a sociological approach to the field.


Equal Protection By Law: Federal Antidiscrimination Legislation After Morrison And Kimel, Reva B. Siegel, Robert C. Post Jan 2000

Equal Protection By Law: Federal Antidiscrimination Legislation After Morrison And Kimel, Reva B. Siegel, Robert C. Post

Faculty Scholarship Series

Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, the Court concluded that Section 5 did not give Congress the power to abrogate state Eleventh Amendment immunity for suits under the Age Discrimination in Employment Act of 1967, and in United States v. Morrison, the Court held that Congress was without power under either the Commerce Clause or Section 5 to enact a provision of the Violence ...


A Tale Of Three Wars: Tinker In Constitutional Context, Akhil Reed Amar Jan 2000

A Tale Of Three Wars: Tinker In Constitutional Context, Akhil Reed Amar

Faculty Scholarship Series

I shall try to weave together three stories today-stories of three bloody wars in American history, and the constitutional lessons that emerged from the bloodshed. The fIrst story involves the Revolutionary War, which led to the creation of the nation, the establishment of the Constitution, and the birth of the Bill of Rights. Second comes the story of the Civil War, prompting the reconstruction of the nation and the rebirth of the Bill of Rights through the Fourteenth Amendment. Finally, there is the story of the Vietnam War and Tinker v. Des Moines Independent Community School District, a case powerfully ...


Becoming Lawyers In The Shadow Of Brown, Akhil Reed Amar Jan 2000

Becoming Lawyers In The Shadow Of Brown, Akhil Reed Amar

Faculty Scholarship Series

Tonight is a time to look back on your three years as law students, and look forward to your future as lawyers. What lies ahead? There are many things you can do with a law degree, many professional lives you can lead. Some of you will work in government, others for nonprofits, still others in the private sector. Will you try cases, argue appeals, or structure transactions? How much should you specialize? In house or outside counsel? Big firm or boutique? Part time or full time? These are some of the choices you confront. Topeka or not Topeka-that too is ...


The Supreme Court, 1999 Term–Foreword: The Document And The Doctrine, Akhil Reed Amar Jan 2000

The Supreme Court, 1999 Term–Foreword: The Document And The Doctrine, Akhil Reed Amar

Faculty Scholarship Series

From the Founding to the Millennium, the Constitution has often proved more enlightened and enlightening than the case law glossing it. The millennial year itself has exemplified this general pattern. Indeed, the year's prominent Court decisions and political controversies provide a rather nice set of detailed case studies allowing us to measure the document against the doctrine.


Property And Expropriation: Themes And Variations In American Law, Carol M. Rose Jan 2000

Property And Expropriation: Themes And Variations In American Law, Carol M. Rose

Faculty Scholarship Series

Most of us think that as a nation, the United States is and always has been very conscious of property. The most legendary of our revolutionary slogans was "no taxation without representation," which is fundamentally about taking property without consent. Almost from its inception, our Constitution has included a clause protecting property against takings for public purposes without compensation, whereas some other countries' constitutions hedge their property clauses with flexible language to take into account the ''public interest," or—as in the case of our Canadian neighbors—dispense with constitutional property protection altogether.

We have received a particularly large dose ...


Left Brain, Right Brain And History In The New Law And Economics Of Property, Carol M. Rose Jan 2000

Left Brain, Right Brain And History In The New Law And Economics Of Property, Carol M. Rose

Faculty Scholarship Series

These two excellent papers reflect a kind of yin and yang of property: Michael Heller is in a quest to unlock the "left-brain" rational categories by which we organize our thinking about property; Peter Huang searches for the grounds of our deep "right-brain" emotional responses to property. Both papers are written in an analytic mode, and I have very little quarrel with either on that count. Following a few comments on the major points in each, however, I will argue that in the case of both left and right brain—rational categories and emotional response—the analytic power of the ...


Commentaries On Lea Brilmayer, Secession And Self-Determination: A Territorial Interpretation: One Decade Later, Lea Brilmayer Jan 2000

Commentaries On Lea Brilmayer, Secession And Self-Determination: A Territorial Interpretation: One Decade Later, Lea Brilmayer

Faculty Scholarship Series

There was little reason to think in 1990 that secession might turn out to
be an important topic. Since Secession and Self-Determination was published
in The Yale Journal ofInternational Law, however, the Baltic states left the
Soviet Union and the rest of the Soviet Union crumbled. Yugoslavia and
Czechoslovakia fractured. Eritrea asserted its independence from Ethiopia
after military success and then a democratic referendum. Quebec's separatist
aspirations from Canada became front page news (along with the comparable
aspirations of various of the indigenous peoples of Quebec). East Timor
succeeded in its drive for independence. Prior to 1990, the only ...


Sentencing Guidelines: Lessons For The States, Kate Stith Jan 2000

Sentencing Guidelines: Lessons For The States, Kate Stith

Faculty Scholarship Series

The tide of our panel is, "Where We Are and How we Got Here." My task is to explain "how we got here," while the rest of the panel will explore where we are-that is, how well or poorly the federal guidelines system is working. The last panel of the day, of course, is "Where Should We Go From Here?" Inevitably, that question is going to be addressed, explicitly or implicitly, throughout the day.


Augusto Pinochet And International Law, Ruth Wedgwood Jan 2000

Augusto Pinochet And International Law, Ruth Wedgwood

Faculty Scholarship Series

This article explores the interplay between historicized law and normative standards of human rights law by considering how the House of Lords dealt with the question of General Pinochet's immunity. By selecting a normative account of state power, the law lords aligned themselves with evolving standards of humanitarian law, articulated in, for example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the law of war, and the Geneva Conventions, and the recent intervention in Kosovo. Although appealing, the normative position is far from unassailable, from both principled and pragmatic angles. The author questions, for ...