Digital Commons Network^™

Race And The Police Power: 1890 To 1937, Richard A. Epstein

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No abstract provided.

The Economics Of Lender Liability, Daniel R. Fischel

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No abstract provided.

Comment On Danelski, Dennis J. Hutchinson

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No abstract provided.

The Federal Court In Idaho, 1889-1907: The Appointment And Tenure Of James H. Beatty, Idaho's First District Court Judge, Monique C. Lillard

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No abstract provided.

State Administration Of A National Sales Tax: A New Opportunity For Cooperative Federalism, John A. Miller

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No abstract provided.

The Virtues Of A Procedural View Of Innocence--A Response To Professor Schwartz, Scott E. Sundby

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No abstract provided.

Is There An Unconstitutional Conditions Doctrine?, Cass R. Sunstein

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No abstract provided.

On The Costs And Benefits Of Aggressive Judicial Review Of Agency Action, Cass R. Sunstein

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No abstract provided.

Politics, Differences And Economic Rights, Mary E. Becker

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No abstract provided.

An Essay In Separation Of Powers: Some Early Versions And Practices, Gerhard Casper

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No abstract provided.

Unconstitutional Conditions: Unrecognized Implications For The Establishment Clause, Michael W. Mcconnell

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One great advantage of a general theory of unconstitutional conditions is that it makes it more difficult for courts to disguise their antipathy or indifference toward the exercise of particular constitutional rights by manipulating undefined notions of "coercion" and "subsidy." The Supreme Court has held that the government may not deny benefits to a person who is out of work for religious reasons;¹ but it may deny benefits to those who lose work because of pregnancy ² or participation in a labor dispute.³ It has held that government subsidies may (and in some instances must) be denied to …

The Religion Clauses Of The First Amendment: Where Is The Supreme Court Heading?, Michael W. Mcconnell

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For almost a decade observers have predicted that the Supreme Court would reconsider its approach to interpreting the religion clauses of the first amendment. For some, this was an outcome to be feared; for others, it was to be welcomed. Optimist and pessimist alike, the Court has repeatedly proven them wrong. Once again, the Court appears on the verge of change. Maybe this time it will come to pass.

If doctrinal confusion and incoherence are predictors of doctrinal change, then change is surely on the way. Consider two recent decisions. According to the Supreme Court, the Constitution permits the State …

The Fortieth Session Of The U.N. Sub-Commission On Prevention Of Discrimination And Protection Of Minorities, Katherine Brennan, Reed Brody, David Weissbrodt

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No abstract provided.

Educational Debts And The Worsening Position Of Small-Firm, Government, And Legal-Services Lawyers, David L. Chambers

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Law school operating costs are up. Tuitions are up. The debts of law students are up. What is happening to the students who have borrowed large sums? Are their debts affecting their decisions about the jobs to seek? Once in practice, are they significantly affecting the standard of living they can afford to maintain? What, in particular, is the effect of debts on those who enter-or contemplate entering-small firms, government, legal services, and "public interest" work where salaries are lower than in most other settings in which lawyers work? In the preceding essay, Jack Kramer has performed another extremely valuable …

Diagnosis Of The Current Code Of Criminal Procedure, Daniel H. Foote

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Approximately 35 years have passed since the current Code of Criminal Procedure went into effect, and today the manner in which that Code is interpreted and applied appears nearly stable. In truth, for most of the provisions and systems under the current Code about which there had been many questions of interpretation and application (e.g., interpretation of the provisions concerning hearsay evidence, discovery, exclusion of illegally-obtained evidence, and abuse of the authority to prosecute), some sort of conclusion (ichid no ketsuron) has been reached. In that sense, matters have "stabilized." However, in my view much more deep-seated problems remain unresolved. …

Summary Of Tokugawa Criminal Justice, Daniel H. Foote

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The summary set forth below is derived principally from the late Professor Yoshiro Hiramatsu's-comprehensive study of Tokugawa criminal justice. Hiramatsu's work focusses on the period from the promulgation of the Osadamegaki by the Shogun Yoshimune in 1742 through the end of the Tokugawa era in 1867. (As described by Professor Dan F. Henderson, Conciliation and Japanese Law, Tokugawa and Modern (1965), Vol. 1, at 7, fn. 26, the Osadamegaki, which consisted of two books, constituted "a compilation and rough codification of prior decrees and precedents", and "was the only such official attempt to systematize the law in the Tokugawa period." …

Nonlawyers In The Business Of Law: Does The One Who Has The Gold Really Make The Rules?, Thomas R. Andrews

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For at least sixty years nonlawyers have been prohibited from offering their nonlegal talents in a business combination with lawyers practicing law. Moreover, when the ABA's new model rules were adopted in 1983, the ABA considered carefully but rejected a proposal that would have lifted the traditional ban on nonlawyer ownership of a law business. Nonetheless, the point of each article was that the relevant restrictions in the ethical rules are on their way out.

Commentators have given considerable attention to the unauthorized practice of law by nonlawyers, and to the offering of legal services by nonprofit institutions. The focus …

Statutory Damage Caps Are An Incomplete Reform: A Proposal For Attorney Fee Shifting In Tort Actions, Gregory A. Hicks

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The premise of this article is that the currently unsettled status of noneconomic damage awards offers an opportunity to reexamine the function of such awards, and to move tort law in the direction of more stable and rational remedies, something that could not be achieved either under recently adopted damage cap statutes or through the reinstatement of unrestricted compensation of noneconomic losses.

This article has two parts. In the first part, the ambiguous role of noneconomic damages, that is, their function as makeweight compensation for noncompensable litigation expenses and as compensation for real intangible injuries, is described. This ambiguity has …

A Skeptical Look At Contemporary Republicanism, Terrance Sandalow

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A growing number of scholars have been led by that impulse to an interest in 'the republican tradition," arguing that it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible. Republicanism is a mansion with many rooms, and its modem interpreters emphasize varying possibilities within it, but common to all is the vision of a politics that recognizes and seeks to strengthen the social bonds within a political community. Within the limits set by that vision differences abound, just as differences exist among liberals concerning appropriate political foundations for individual freedom. …

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.

Are Twelve Heads Better Than One?, Phoebe C. Ellsworth

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Few advocates of the jury system would argue that the average juror is as competent a tribunal as the averagejudge. Whatever competence the jury has is a function of two of its attributes: its number and its interaction. The fact that a jury must be composed of at least six people,' with different backgrounds, experiences, and perspectives, provides some protection against decisions based on an idiosyncratic view of the facts. Not only must the jury include at least six people, but they must be chosen in a manner that conforms to the ideal of the jury as representative of community …

Copyright Legislation And Technological Change, Jessica D. Litman

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Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we …

The Political Economy Of Barry Commoner, James E. Krier

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The centerpiece of what follows is an article by Barry Commoner that appeared in The New Yorker magazine in 1987.' The article, although an essentially popular work, is for several reasons worth the attention of a community professionally interested in law and the environment. First, it distills and supplements views that Commoner has advanced with much prominence throughout the life-twenty years to date-of the environmental movement in the United States. Thus it provides an opportunity for the present generation's students of environmental law, many of whom seem to know nothing of Commoner and his ideas, to become familiar with a …

At-Will Employment: An Overview, Theodore J. St. Antoine

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The most dramatic development of the last decade has been the rapid judicial expansion of modifications in at-will employment doctrine.

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 …

The High Seas And The International Seabed Area, Bernard H. Oxman

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No abstract provided.

Drafting Wagner's Act: Leon Keyserling And The Precommittee Drafts Of The Labor Disputes Act And The National Labor Relations Act, Kenneth M. Casebeer

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This Article analyzes the development of the National Labor Relations Act through the drafts of the original Act. The author traces the evolution of Senator Wagner's ideas through numerous policy and political battles to the passage of the NLRA in 1935. The author explores the development of the drafts and the historical context surrounding their creation to reveal the social theory of the drafters and illuminate previously unexplored undercurrents in the text of the Act itself. The author, through this novel approach to the NLRA, sets up a new way to view the 1935 Act, and evaluates subsequent amendments and …

Minority Law Professors' Lives: The Bell-Delgado Survey, Richard Delgado

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Presents the results of a survey of job satisfaction among law professors of color Reveals how minority professors reported their experiences within 11 discrete categories including academic freedom institutional climate relations with students and collegial support Concludes that many law professors suffer high levels of stress associated with their work some of it arising from racism and marginalization

Accommodation And Satisfaction: Women And Men Lawyers And The Balance Of Work And Family, David L. Chambers

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This study of graduates of the University of Michigan Law School from the late 1970s reports on the differing ways that women and men have responded to the conflicting claims of work and family. It finds that women with children who have entered the profession have indeed continued to bear the principalr esponsibilitiesf or the care of children, but it alsof inds that these women, with all their burdens, are more satisfied with their careers and with the balance of their family and professional lives than other women and than men.

Hiring Ruled Contractual, Bill Gore, Douglas A. Kahn, Stan Shields

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On December 29, 1988, the California Supreme Court decided Foley vs. Interactive Data Corp., perhaps the most eagerly awaited state supreme court decision in years. The Foley ruling, which immediately was hailed as a tremendous victory for California employers, eliminated punitive damage awards for many wrongfully terminated employees. That was good news for the employers. The decision, however, also provided employers with sobering news. Most significantly, the court ruled that employment relationships essentially are contracts, with terms created by the reasonable expectation of the parties. Thus, the majority of California employees now have a right to sue for breach …