Jurisprudence Commons^™

Racism As "The Nation's Crucial Sin": Theology And Derrick Bell , George H. Taylor

ExpressO

The Article probes a paradox that lies at the heart of the work of critical race scholar Derrick Bell. Bell claims on the one hand that racism is permanent, and yet on the other he argues that the fight against racism is both necessary and meaningful. Although Bell’s thesis of racism’s permanence has been criticized for rendering action for racial justice unavailing, the Article advances an understanding of Bell that supports and defends the integrity of his paradox. The Article draws upon the work of Protestant theologian Reinhold Niebuhr and Niebuhr’s paradox that social action is both necessary and meaningful …

Political And Legal Governance Under The Judicial Reform: A Case Study On Basic-Level Political And Legal Committee（司法改革背景下的政法治理方式——基层政法委员会制度个案研究）, Meng Hou

Hou Meng

No abstract provided.

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …

The "No Property" Problem: Understanding Poverty By Understanding Wealth, Jane Baron

ExpressO

No abstract provided.

Manual De Derecho Procesal Civil, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Democracy, Judicial Review And The Rule Of Law In The Age Of Terrorism: The Experience Of Israel - A Comparative Perspective, 31 Ga. J. Int'l & Comp. L. 493 (2003), Ralph Ruebner

UIC Law Open Access Faculty Scholarship

No abstract provided.

Two Conceptions Of Relevance, Jonathan Yovel

Jonathan Yovel

Courts use complex modes of relevance judgments in regulating the introduction of information and construction of factual narratives; likewise, common law works both through and around relevance presuppositions in determining doctrine. This study examines different functions of relevance - conceived as different conceptions, at times competing, at times interdependent. The distinctions between these conceptions are arranged on three levels: 1) a normative/"causal" level, arguing for the status of relevance as a requirement for a "meaning-based" conception of entailment and drawing on discussions from relevance logic (RL) and modal logic; 2) a pragmatic/metapragmatic level that explores the ways in which law's …

Foreword, Sam Hanson

William Mitchell Law Review

Introduction to issue of Recent Decisions of the Minnesota Supreme Court (from 2002-03 term).

Philosophy And Opinions, Warren Ortland

William Mitchell Law Review

Review of Law, Pragmatism, and Democracy. By Richard A. Posner. Harvard University Press, 2003. 398 Pages. $35.00.

The Creativity Of The Common-Law Judge: The Jurisprudence Of William Mitchell, Charles J. Reid Jr.

William Mitchell Law Review

Mitchell's presence graced the Minnesota Supreme Court for nearly nineteen years, from 1881 to 1900. His output was prodigious. He produced nearly 1600 judicial opinions. It has been estimated “that excluding Sundays, and allowing a month in each year for vacation, Judge Mitchell wrote one opinion in every three days for nineteen years.” Indeed, “[i]n point of numbers, his opinions exceed those of any other justice of the Supreme Court of his state, or the nation.” It is one aspect, perhaps the central aspect, the unifying theme of this prolific body of work, that is the focus of this essay: …

Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.

Articles

The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested.

One such …

Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran

Articles

The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the …

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Regionalization Of International Criminal Law Enforcement: A Preliminary Exploration, William W. Burke-White

All Faculty Scholarship

No abstract provided.

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Harm, History, And Counterfactuals, Stephen R. Perry

All Faculty Scholarship

No abstract provided.

Child Placement Decisions: The Relevance Of Facial Resemblance And Biological Relationships, David J. Herring

Articles

This article discusses two studies of evolution and human behavior addressing child-adult relationships and explores implications for policies and practices surrounding placement of children in foster homes. The first study indicates that men favor children whose facial features resemble their own facial features. This study may justify public child welfare decisionmakers in considering facial resemblance as they attempt to place children in safe foster homes.

The second study indicates that parents are likely to invest more in children who are biologically related to them, thus enhancing their long term well-being. Among other implications, this study may justify public child welfare …

Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

It Is Not So Simply Because An Expert Says It Is So: The Reliability Of Gang Expert Testimony Regarding Membership In Criminal Street Gangs: Pushing The Limits Of Texas Rule Of Evidence 702., Placido G. Gomez

St. Mary's Law Journal

The mechanisms developed by the criminal justice system addressing the criminal activities of street gangs, for the most part, have proved ineffective. The evolution of gangs, their complex structure, and multipurpose focus keep them one step ahead of law enforcement. The most recent weapon created to fight the war on gangs, the civil injunction, suffers from numerous inadequacies. One concern is that civil injunctions raise numerous constitutional concerns. Another is that these injunctions fall short of constitutional demands. Furthermore, the practical implementation of the injunction forces an analysis of the reliability of the gang expert’s testimony. This Article proposes courts …

Telemedicine In Texas: Solving The Problems Of Licensure, Privacy, And Reimbursement., Gilbert Eric Deleon

St. Mary's Law Journal

Abstract Forthcoming.

Rethinking The Prohibition Of Death Row Prisoners As Organ Donors: A Possible Lifeline To Those On Organ Donor Waiting Lists., Donny J. Perales

St. Mary's Law Journal

Organ transplantation continually brings hope and new life to thousands of patients suffering from a myriad of diseases. Despite the advances in medical science and the increased survival rates of organ recipients, many are unable to receive an organ transplant because the demand for organs drastically exceeds the available supply. Much of the organ deficit lies in the current system of organ procurement. The altruism-based organ system leaves the donative decision to the individual; however, it is this system which hinders effective organ procurement. Under this system, the donor must give prior consent before a doctor can remove any organ. …

Introduction To The Second Annual Symposium On Legal Malpractice & (And) Professional Responsibility The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Adam Boland

St. Mary's Law Journal

Abstract Forthcoming.

Absolute And Perfect Candor To Clients The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Vincent R. Johnson

St. Mary's Law Journal

The fiduciary duty owed to clients by attorneys is defined by the reasonable-care standard of negligence as opposed to the all-encompassing “absolute and perfect candor” rhetoric frequently used to describe the duty owed. Words have meanings and, though the use of “absolute and perfect candor” serves a beneficial purpose, reminding attorneys of the special duty owed to their clients, the fiduciary duty owed to clients is not so all encompassing and impractical. Modern case law fails to establish that a broadly applicable duty of “absolute and perfect” candor applies to the attorney-client relationship, except in a limited number of situations. …

Tactical Considerations In Defending Assigned Legal Malpractice Claims Essay., William D. Cobb Jr.

St. Mary's Law Journal

Every Texas lawyer with a legal malpractice defense docket should be aware of the Zuniga rule and its possible exceptions. Although the general rule in Texas is that causes of action are freely assignable, because of the ruling in Zuniga v. Groce, Locke & Hebdon, legal malpractice causes of action are unassignable. The Texas Supreme Court declined to hear the case with the notation “writ refused” essentially adopting the lower court’s opinion as its own. Nonetheless, the decision in Zuniga did not resolve the problem of the insolvent judgment debtor, nor did Zuniga purport to invalidate all agreements that dispose …

The Cost Of Humanitarian Assistance: Ethical Rules And The First Amendment The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Jack P. Sahl

St. Mary's Law Journal

Abstract Forthcoming.

Iolta In The Balance: The Battle Of Legality And Morality Between Robin Hood And The Miser Recent Development., Katherine L. Smith

St. Mary's Law Journal

Interest on Lawyers Trust Account (IOLTA) programs recently survived a constitutional challenge. IOLTA programs require interest earned from trust accounts deposited with client money to fund legal services for the poor. Many states, including Texas, maintain a mandatory IOLTA program, requiring all lawyers who handle client funds to participate. Proponents of IOLTA argue it benefits civil justice. Opponents argue it is an unconstitutional taking in violation of the Fifth Amendment. The Fifth Circuit held IOLTA accounts to be an unconstitutional taking of client property. The Ninth Circuit, however, found IOLTA accounts constitutional, holding that IOLTA accounts are not a taking …

Novel Issues, Futile Issues, And Appelate Advocacy: The Troubling Lessons Of Bousley V. United States., Henry J. Bemporad, Sarah P. Kelly

St. Mary's Law Journal

Bousley v. United States may require appellate attorneys to raise meritless claims in order to preserve them for habeas review in the event of a change in the law. Bousley is a habeas corpus case involving the “procedural default” doctrine. The doctrine states that a prisoner may only raise issues that have been adequately preserved, and if not preserved, they have defaulted on their claims. Bousley looked with critical hindsight at the decisions made by appellate counsel and punished the defendant for their lawyer’s failure to preserve an issue rejected by eleven courts of appeals—including the court before which the …

Accountants' Accountability To Nonclients In Texas., Jessica P. Gomez

St. Mary's Law Journal

This Comment proposes that accountants be held liable to any foreseeable user of their work product to ensure the deterrence of negligence on their part. Currently, the three main common law theories concerning whether nonclients can sue accountants for negligence are: (1) the privity rule; (2) the Restatement (Second) of Torts § 552; and (3) the foreseeability standard. Many states follow the Restatement approach entitled “Information Negligently Supplied for the Guidance of Others.” Texas imposes liability on accountants but fails to extend protections to third parties who rely upon the accuracy of financial statements. Further, Texas liability does not expose …

Punitive Damages In Texas: Examining The Need For A Split-Recovery Statute., Meredith Matheson Thoms

St. Mary's Law Journal

As a result of the increasing number and amounts of punitive damage awards, a call for reform is much warranted. Reformers and legislators continue to seek out measures to effectively limit excessive punitive damage awards and deter unnecessary and frivolous litigation. But they must consider not only the effects of the statutes but also the purposes they will serve. Split-recovery statutes can become valuable reform tool which will continue to serve the goals of punishment and retribution attached to punitive damages as well as deterrence. Split-recovery statutes arguably enlarge government, but they also serve a valuable purpose in furthering the …

The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas

All Faculty Scholarship

No abstract provided.