Digital Commons Network^™

In Pursuit Of Better Myth: Lawyers' Histories And Histories Of Lawyers, W. Wesley Pue

All Faculty Publications

This paper explores the mythologies contemporary lawyers generate in defence of existing professional structures. Drawing on the history of legal professions, the paper engages critically with professional apologetics, from a perspective influenced by diverse contemporary writings on legal professions including those associated with Richard Abel, Terrence Halliday, and others.

The Role Of The Child's Attorney In Protecting The Child Throughout The Litigation Process, Ann M. Haralambie

North Dakota Law Review

No abstract provided.

"Use" And The Irresistible Impulse To Legislate, Robert C. Dorf

Touro Law Review

No abstract provided.

Repo Madness: The Characterization Of Repurchase Agreements Under The Bankruptcy Code And The U.C.C., Jeanne L. Schroeder

Articles

The article examines the legal characterization of repurchase agreements (repos) under the Bankruptcy Code and the Uniform Commercial Code (U.C.C.), with a focus on proposed revisions to Articles 8 and 9. It argues that repos should be treated as sales rather than secured loans, primarily due to the repo buyer's unrestricted right to deal with the collateral. This characterization is supported by court rulings in cases such as In re Bevill, Bresler & Schulman and SEC v. Drysdale Securities Corp., which emphasize the transfer of ownership and the buyer's ability to engage with the securities. The article critiques current methods …

A Square Peg In A Vicious Circle: Stephen Breyer's Optimistic Prescription For The Regulatory Mess, Eric J. Gouvin

Faculty Scholarship

This Article reviews the book by Supreme Court Justice, Steven G. Breyer, "Breaking The Vicious Circle: Toward Effective Risk Regulation. " The Author discusses this book's most significant contribution that draws attention to the current regulatory regime's systemic problems, thereby encouraging serious discussion about how to "reinvent" the regulatory process. Breyer courageously points out that the political legitimacy of the process rests to some degree on the effectiveness of its product. This Review outlines the systemic problems and the "vicious circle" identified by Justice Breyer and then proceeds to review his proposed solution. The final part presents several criticisms of …

Clinging To History: The Supreme Court (Mis)Interprets Federal Rule Of Evidence 801(D)(1)(B) As Containing A Temporal Requirement, Christopher A. Jones

University of Richmond Law Review

The adoption of the Federal Rules of Evidence (the Rules) resulted in a more liberal standard for the admission and use of various forms of evidence. For example, the Rules altered the definition of "relevant evidence" increasing the scope of evidence that can be presented to a jury. Also, the Rules per- mit prior inconsistent statements to be admitted as substantive evidence rather than for impeachment purposes only. The Advisory Committee enunciated these changes, and other changes resulting from the adoption of the Rules, in their notes accompanying the Rules.

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …

Translating Legendre Or, The Poetical Sermon Of A Contemporary Jurist, Peter Goodrich

Cardozo Law Review

In deference to the occasion and to the theme of this colloquium I will not endeavor to provide any coherent, systematic, or sustained introduction to the work of the French jurist and psychoanalyst Pierre Legendre. I will begin instead with a brief history of a dual absence, that of psychoanalysis from law and of the writing of Legendre from the curriculum of contemporary jurisprudence. My question initially will be that of what can be predicated of this absence. What does it mean that the legal institution and specifically those that Legendre terms the moralists and bureaucrats-the "indolent pedagogues" of the …

Before The Law There Stands A Woman: In Re Taylor V. Butler (With Court-Appointed Yiddish Translator), Jonathan Boyarin

Cardozo Law Review

I begin with a story I heard from my Lower East Side rabbi, Rabbi Singer (because relating Torah in the name of the one who said it is said to help bring redemption), about an Eastern European sage known as the Lemberger Gaon.

The Health Care Proxy And The Narrative Of Death, Steven I. Friedland

Journal of Law and Health

This article is divided into three sections. After this introduction, section II features a brief history of the narrative of death, explores the role of heroism in the death narrative, described the "miracles" of modern medicine, and analyzes some of the resulting adverse transformations wrought by the advances. The transformations include the unrealistic expectations of longevity and obsession with youthfulness, the removal of death from the personal realm, and the change in the nature of death. Section III examines the legal apparatus erected to meet the issues created by the medical advances, including the redefinition of death, and Constitutional, common …

The Law And Politics Of Quebec Secession, Patrick J. Monahan

Osgoode Hall Law Journal

This paper considers the various legal issues that would arise in the context of Quebec's secession from Canada, and attempts to situate these issues politically. The author argues that, under the current constitutional amending formula, Quebec secession would require the support of the federal Parliament as well as the unanimous consent of the provinces; he also suggests that it is extremely unlikely that this level of support would be attained. The paper goes on to explore the possibility of Quebec seceding from Canada through a unilateral declaration of independence (UDI), suggesting that the success or failure of a UDI would …

Progressive Regression, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Robin West has written a book that every constitutional scholar would like to like. In Progressive Constitutionalism, she promises us a new and historically accurate interpretation of the Fourteenth Amendment that will deliver us from the quagmire of fruitless debate between the far left and the far right, and provide a constitutional solution to some of today's most important disputes. She also explains why this interpretation is inherently difficult for the judicial branch to recognize, and thus recommends that progressives turn to Congress instead. West's past contributions to constitutional jurisprudence have been impressive, creating in her readers high expectations for …

Linguistics And Legal Epistemology: Why The Law Pays Less Attention To Linguists Than It Should, Gary S. Lawson

Faculty Scholarship

Law and linguistics ought to be natural partners. Modem statutory and constitutional interpretation increasingly focuses on the generally accepted public meaning of legal language. Even persons who do not believe (as I do) that some form of public understanding of the relevant text is the end all, if not quite the be-all, of such interpretation are likely to regard the public understanding of statutory language as at least one relevant factor in legal interpretation. And who better than linguists to inform the law about the true facts regarding public usage and understanding of legal language?

Jacques Of All Trades: Derrida, Lacan, And The Commercial Lawyer, Sidney Delong

Faculty Articles

Professor DeLong’s article provides humorous advice for legal professors on how to apply deconstructionist and post-Freudian theory to commercial law classes. Professor DeLong explains that the key to the successful integration of postmodern thought into your own scholarship is stunningly simple: all you have to do is not care whether you really get it right. He describes how you too will soon be turning out articles like "The Social Construction of Cowness in the Packers and Stockyards Act," or "Silencing the Lambs: Narratives of Loss and Evisceration in the Packers and Stockyards Act," or "Cattle Prods and Cutting Pens: A …

Youth Justice In A Unified Court: Response To Critics Of Juvenile Court Abolition, Janet Ainsworth

Faculty Articles

In this article, Professor Ainsworth argues that a unified criminal justice system is preferable to our present two-tiered adult-juvenile court system. In fact, she contends that the cultural and ideological assumptions that underpin the current two-tiered justice system not only engender many of the serious shortcomings of the juvenile justice system, but also serve to exacerbate the very policies and practices of the adult criminal justice system that make it so abhorrent to defenders of the juvenile court. Critics of juvenile court abolitionists thus miss the point when they argue that juveniles would be worse off than they are at …

Free Speech And The Mass Media In Russia: Lessons From The December 1993 Election And Constitutional Referendum, Melissa Dawson

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Challenge Of Asian Law, Whitmore Gray

Fordham International Law Journal

Several years ago, when U.S. trade across the Pacific finally surpassed that across the Atlantic, a small group of U.S. lawyers were already responding to the challenge of representing clients in transactions in Asia. While few had had the opportunity to take courses dealing with Asian law during their law school years, many entered the field because of undergraduate language and area studies courses. The challenges seem clear: improve the quantity, and especially the variety, of courses on Asian law; bring Asia into the mainstream of American teaching wherever possible - hopefully as a result of having involved American non-specialist …

Freedom Of Religion & Religious Minorities In Pakistan: A Study Of Judicial Practice, Tayyab Mahmud

Fordham International Law Journal

Pakistan's successive constitutions, which enumerate guaranteed fundamental rights and provide for the separation of state power and judicial review, contemplate judicial protection of vulnerable sections of society against unlawful executive and legislative actions. This Article focuses upon the remarkably divergent pronouncements of Pakistan's judiciary regarding the religious status and freedom of religion of one particular religious minority, the Ahmadis. The superior judiciary of Pakistan has visited the issue of religious freedom for the Ahmadis repeatedly since the establishment of the State, each time with a different result. The point of departure for this examination is furnished by the recent pronouncement …

The Emergence Of Diversity: Differences In Human Rights Jurisprudence, Fionnuala Ni Aolain

Fordham International Law Journal

This Article documents the patterns of judicial divergence in the area of non-derogable rights. It examines the increased conservatism of the European Court of Human Rights relative to other international bodies in one specific area; the interpretation and protection of human rights violations in situations of emergency. This Article explores the responses of international courts and tribunals to situations where states have limited the exercise of their citizens' rights as a result of political crisis. These limitations are examined in relation to the agreed obligations of states to protect rights when they sign human rights treaties. Part I looks …

Why Redraw The Map Of Africa: A Legal And Moral Inquiry, Makau Wa Mutua

Journal Articles

This article questions the legitimacy of the African state and the imperial cartography on which it is based. It argues that African states are conceptually faulty because they are the crude and thoughtless handiworks of European colonial powers. It is the artificiality of the African state that has been responsible for its failure to cohere into a nation that is viable. The piece argues for geographic and normative re-articulation of the African state - by smashing the current states - to endow them with moral, political, and legal legitimacy. It concludes that democratic entities are unlikely to develop where pre-colonial …

Economic Justice In Divorce, Emily Jackson

Cardozo Journal of Equal Rights & Social Justice

The article examines the challenges of achieving economic justice in divorce, particularly for women, who often face financial hardship due to their caregiving roles. It critiques the "clean break" principle in spousal support, arguing that it neglects the economic sacrifices of custodial parents and the value of human capital investments. While spousal support may reinforce gender stereotypes, its denial can perpetuate inequality. The article advocates for a more nuanced legal framework that considers the interplay of law, theory, and social reality to address the economic realities of divorce effectively.

The Traffic In Souls: Privacy Interests And The Intelligent Vehicle-Highway Systems, Sheldon W. Halpern

Santa Clara High Technology Law Journal

No abstract provided.

The Caning Of Michael Fay: Can Singapore's Punishment Withstand The Scrutiny Of International Law?, Firouzeh Bahrampour

American University International Law Review

No abstract provided.

A Festschrift In Honor Of Seymour J. Rubin, Claudio Grossman, Tom Farer, Andreas J. Jacovides, Herman Schwartz, Bennett Boskey, William Diebold, Christina M. Cerna

American University International Law Review

No abstract provided.

The Role Of International Law In The Twenty-First Century: An African Perspective, A. Peter Mutharika

Fordham International Law Journal

No abstract provided.

Liberalism And The Possibility Of Multicultural Constitutionalism: The Distinction Between Deliberative And Dedicated Cultures, Robert Justin Lipkin

University of Richmond Law Review

Liberalism and multicultural constitutionalism are on a collision course destined to become the next great battlefield in the unfolding odyssey of American constitutional law. The impending battle will define the scope and limits of liberal constitutionalism and its role as the model for democracy around the world. While turbulence between liberalism and multicultural constitutionalism occurs across a panoply of controversies, the eye of the storm focuses on one central question: Can liberalism tolerate non-liberal cultures? This article explores the hypothesis that liberalism's deep structure precludes it from explaining and justifying the toleration of non-liberal cultures. If so, this hypothesis has …

Analytic Deconstructionism? The Intellectual Voyeurism Of Anthony D'Amato, Alan R. Madry

Fordham Law Review

No abstract provided.

Defensing The Indefensible: Exceptions To D'Oench And 12 U.S.C. § 1823(E), Chris Atkinson

Fordham Law Review

No abstract provided.

Resolving Pre-Receivership Claims Against Failed Savings And Loans: An Unnecessarily Exhausting Experience, Dierdre M. Roarty

Fordham Law Review

No abstract provided.

Constitutional Reform On Taiwan: Fulfilling A Chinese Notion Of Democratic Sovereignty?, Piero Tozzi

Fordham Law Review

No abstract provided.