Digital Commons Network^™

Legal Affinities, Joseph Vining

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Not long ago, any question of the kind "How may theology serve as a resource in understanding law?" would have been hardly conceivable among lawyers. When Lon Fuller brought out his first book in 1940, The Law in Quest of Itself, he could think of no better way of tagging his adversary the legal positivist than to note a "parallel between theoretical theology and analytical jurisprudence." Two decades later, in the name of realism, Thurman Arnold dismissed Henry Hart's non-positivist jurisprudence in harsh terms. A master of the cutting phrase, he confidently entitled his attack "Professor Hart's Theology." Two decades …

First Person Singular, John W. Reed

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The hot topic in legal circles is the decline of professionalism. In this often negative age, it ranks right up there with "What's wrong with American schools?" and "Where will we live when the ozone is gone?" and "How can we get a handle on drugs?"-all those terrible things.

General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng

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(Adopted April 12, 1986, at the Fourth Session of the Sixth National People's Congress, to take effect on January 1, 1987)

"Libelous" Petitions For Redress Of Grievances -- Bad Historiography Makes Worse Law, Eric Schnapper

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Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear.

Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of materials that …

From The Shoulders Of Houston: A Vision For Social And Economic Justice Commemorative To Charles Hamilton Houston: Commemorative Articles, Steven H. Hobbs

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No abstract provided.

Individual Autonomy And Collective Empowerment In Labor Law: Union Membership Resignations And Strikebreaking In The New Economy, David Abraham

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In this Article, Doctor Abraham studies the tensions between individual rights and theories of collective action in the context of union membership resignations and strikebreaking. He argues that recent judicial and executive tendencies to value individual worker autonomy over collective union action are misguided, lacking a basis in both legal precedent and social reality. In support of his view, Abraham first explores the philosophical and historical-sociological roots of labor and labor-capital relations, focusing on the meaning of employment and the history of collective action. Next, he examines the social and legal origins of the judiciary's recent tendency to increase union …

Nollan, Henry George, And Exactions, Stewart E. Sterk

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The article examines the legal and economic implications of exactions, particularly in light of the Supreme Court's decision in Nollan v. California Coastal Commission. While exactions—requirements imposed on developers to provide municipal benefits—can theoretically promote efficiency and fairness, the analysis suggests that their practical implementation by municipalities is fraught with challenges. These challenges include the potential for inefficiency, unfairness, and arbitrary decision-making, which may undermine their effectiveness and raise constitutional concerns. The article argues that the concerns expressed in Nollan and other cases stem from the fear that exaction schemes could lead to inefficient and unfair municipal behavior, as well …

Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory And Contract Law, Lester Brickman, Lawrence A. Cunningham

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Since the New York Court of Appeals banned nonrefundable retainers, numerous other courts have joined in prohibiting this widespread practice of lawyers charging a fee for services in advance and keeping the fee even if the services are not performed. This may reflect increased judicial recognition of the effect of egregious fee practices on the image of the bar and the role such practices play in the declining esteem in which the legal profession is held. Among the more provocative contributors to this ongoing debate, Professor Steven Lubet recently reviewed our work advocating the ban against nonrefundable retainers and posed …

Coming Of Age Some More: "Law And Literature" Beyond The Cradle, Richard H. Weisberg

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The article explores the historical development and significance of the Law and Literature movement, emphasizing the importance of literature in understanding legal reasoning, judicial writing, and professional ethics. It highlights how literature provides unique insights into the legal profession and advocates for its integration into legal education and practice to enhance ethical understanding and communication skills.

Terrorism On The High Seas: The Achille Lauro, Piracy And The Imo Convention On Maritime Safety, Malvina Halberstam

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No abstract provided.

Jurisprudential Responses To Legal Realism, Richard A. Posner

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No abstract provided.

The Mistakes Of 1937, Richard A. Epstein

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No abstract provided.

The Jurisprudence Of Skepticism, Richard A. Posner

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No abstract provided.

Contract Rights And Property Rights: A Case Study In The Relationship Between Individual Liberties And Constitutional Structure, Michael W. Mcconnell

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In this Essay, Professor McConnell argues that constitutional interpretation should extend beyond the substantive principles expressed in the Constitution to the structural and institutional choices of the Framers. As an example, he explores possible explanations for the disparate treatment the Constitution accords to property and contract rights. Despite the Founders' general commitment to the preservation of private contract and property rights, the contracts clause, by its terms, applies only to state governments, while the just compensation clause applies solely to the federal government. Part I of the Essay summarizes the textual problem posed by the contracts and just compensation clauses. …

Book Review (Reviewing Eskridge, William N., J., Cases And Materials On Legislation: Statutes And The Creation Of Public Policy (1988)), Richard A. Posner

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No abstract provided.

Blackmail, Ronald H. Coase

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No abstract provided.

Modern Republicanism--Or The Flight From Substance, Richard A. Epstein

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No abstract provided.

The Depiction Of Law In The Bonfire Of The Vanities, Richard A. Posner

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No abstract provided.

The Constitution In The Supreme Court: 1946-1953, David P. Currie

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No abstract provided.

Rent Control And The Theory Of Efficient Regulation, Richard A. Epstein

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No abstract provided.

Classical Legal Tradition, Richard A. Epstein

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No abstract provided.

Employment At Will: The French Experience As A Basis For Reform, Madeleine M. Plasencia

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Roughly one-quarter of the workers in the United States are represented by unions, leaving three-quarters subject to the vicissitudes of the employment-at-will doctrine.' At-will employees, as a general matter, lack protection against dismissal without cause.2 That is, an employer may dismiss an "at will" employee without notice, "for good reason, bad reason or no reason at all," so long as the proffered reasons for dismissal do not violate random whistle-blowing provisions or federal and state anti-discrimination statutes.' The mirror image of the employer's right to dismiss at will is the right of an employee who was hired to perform work …

Crime In The Stacks, Or A Tale Of A Text: A Feminist Response To A Criminal Law Textbook, Mary I. Coombs

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No abstract provided.

Sexual Orientation And The Constitution: A Note On The Relationship Between Due Process And Equal Protection Essays, Cass R. Sunstein

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No abstract provided.

Trashing The German Advantage, John H. Langbein

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No abstract provided.

The Twentieth-Century Revolution In Family Wealth Transmission, John H. Langbein

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No abstract provided.

The Right To Life During Armed Conflict: Disabled Peoples' International V. United States, David Weissbrodt, Beth Andrus

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Because of persecution, civil war, and economic despair, millions of people flee from their homes and go to live in other countries where they can stabilize their lives and find a safe place for themselves and their families. In 1998, the United Nations High Commissioner for Refugees estimated the number of people fleeing their home countries to exceed 22 million. 1 The right to seek and enjoy asylum is a well established principle in international law. 2 It has, however, been interpreted consistently as the right of the sovereign state to grant or deny asylum to those within its territory, …

Lender/Owners And Cercla: Title And Liability, Ann Burkhart

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The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) represents Congress' response to the problem of cleaning up hazardous waste sites. The Act and its related regulations authorize the Environmental Protection Agency (EPA) either to order the responsible parties to contain the hazardous waste on the site or to clean the site and charge the responsible parties for EPA's response costs. An unresolved issue is whether these provisions contemplate holding a lender/owner liable for response costs. In this Article, Professor Burkhart rebuts challenges to lender/owner liability. She begins by scrutinizing the language and legislative history of the liability provisions and …

Marine Archaeology And The International Law Of The Sea, Bernard H. Oxman

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No abstract provided.

Beating Up On Women And Old Men And Other Enormities: A Social Historical Inquiry Into Literary Sources, William I. Miller

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The Icelandic sagas, besides being one of the most impressive literatures existing in any language, preserve detailed accounts of feud and legal action, and describe with intelligence and care the general techniques and strategies of dispute processing. They also contain, incidental to the narrative, information about values and law, marriage and death, householding arrangements and the systems of exchange, naming patterns, and so on, for those who care to coax such information from the texts.