Digital Commons Network^™

Jurisprudence Of Successful Treason: Coup D'Etat & Common Law, Tayyab Mahmud

Faculty Articles

The first part of this article is a survey of all known judicial responses to coups d'etat in post colonial common law settings. Although these different coups unfolded in diverse contexts the courts validated all incumbent usurper regimes with one exception. Kelsen's theory of revolutionary legality furnished the primary doctrinal vehicle to reach this result. While some courts adopted Kelsen's proposition that efficacy of a coup bestows validity in an unadulterated form, others modified this with or substituted it by doctrines of state necessity, implied mandate, and public policy. Following Kelsen, they fail to distinguish between legitimacy and validity of …

The Pornographic State, David Skover, Ronald Collins

Faculty Articles

Written as a contribution to the Harvard Symposium on Changing Images of the State, this article explores the realm of Pornotopia, a republic of images, the state that liberal America aspires to be. Imagine a nation in which there is little or no discord about pornography because there is little or no meaningful discourse about it. Imagine a nation in which people gladly trade the reality of human beings for images of that reality, a "virtual reality." Imagine a nation in which there is erotic self­expression but little or no communal expression. Imagine a nation in which sexual war and …

Equal Enforcement For All, George Van Cleve

Faculty Articles

As a premise, there is no reason in this society, at this time, for individuals of any race or economic status to be involuntarily exposed to disproportionate environmental risks. This article argues that if there are disproportionate impacts and you want to do something about it, you tell the government to increase enforcement resources. You tell the government to make sure that there are no exceptions, and that the fact that an employer is a large, local employer and politically influential does not mean that it should get any breaks from anybody for any reason.

Outing In The Time Of Aids: Legal And Ethical Considerations, John F. Hernandez

Faculty Articles

No abstract provided.

Severely Dependent Alcohol Abusers May Be Vulnerable To Alcohol Cues In Television Programs, Linda C. Sobell, Mark B. Sobell, Anthony Toneatto, Gloria I. Leo

Faculty Articles

The self-reported ability of 96 alcohol abusers to resist the urge to drink heavily was assessed after they viewed a videotape of a popular prime time television program complete with advertisements. Different versions of the videotape were used to evaluate the effects of a television program with and without alcohol scenes as crossed with the effects of three different types of commercials (i.e., beer, nonalcoholic beverages, food). Before and after viewing the videotape, subjects, who were led to believe that they were participating in two separate and unrelated sets of experimental procedures, completed several drinking questionnaires. Responses to one of …

The Seven Deadly Sins Of Takings Law: The Dissents In Lucas V. South Carolina Coastal Council, Richard A. Epstein

Faculty Articles

An old and familiar adage of great relevance to the Takings Clause is that turnabout is fair play. The recent decision of Lucas v. South Carolina Coastal Council illustrates the soundness of that general proposition, but perhaps not in a sense the Justices might appreciate. Most of the attention to the case is rightly given to the majority opinion of Justice Scalia, with more than a passing nod to the concurrence of Justice Kennedy. These two dominant opinions present a large target, for while they touch upon many of the most important issues of takings law, they falter on at …

Race And Redistricting: Drawing Constitutional Lines After Shaw V. Reno, Alexander T. Aleinikoff, Samuel Issacharoff

Faculty Articles

Shaw is no doubt a major opinion that attempts to define limits on the use of racial or ethnic classifications in electoral redistricting. The main thrust of this article is to assess the critical question of whether Shaw renders unconstitutional the type of race-conscious realignment of electoral configurations that have given meaning to the voting-rights reforms of the past two decades. In making this assessment, we try to ascertain exactly how the Court has limited the use of race-conscious districting, and we try to determine whether there is any jurisprudential coherence to the Court's latest confrontation with the law and …

Antidotes For The "American Disease", Richard B. Stewart

Faculty Articles

It may seem surprising and perhaps presumptuous to suggest that Europe is in danger of catching a distinctively American disease: regulatory legalism. The United States and the European Community reflect significantly different degrees of political centralization and have different legal and regulatory cultures. In the United States, formal, adversarial procedures and extensive litigation burden the regulatory process. In Europe, most regulatory decisions are developed through informal processes of consultation, and litigation is rare. Nonetheless, recent signs suggest that the European Community is vulnerable to a variant of U.S.-style regulatory legalism. Legislation in the Community increasingly relies on centralized command and …

Environmental Regulation And International Competitiveness, Richard B. Stewart

Faculty Articles

The world is simultaneously facing increasing economic interdependency and intensified demands for protecting the environment. The June 1992 United Nations Conference on Environment and Development (UNCED) in Rio has stimulated awareness of the global character of many environmental problems and the impact of environmental regulation on economic growth. At the same time, businesses and nations increasingly are concerned about their ability to compete in the international marketplace. Nations such as the U.S. that adopt stringent environmental protection measures fear that they will be disadvantaged in that competition. This Article examines the potential conflicts between environmental protection and international trade and …

Reading Between The Lines: Indigent Defense Issues And The Restatement Of The Law Governing Lawyers, Kim A. Taylor-Thompson

Faculty Articles

In the development and analysis of rules of professional responsibility, it has long been recognized that criminal defense is, simply stated, different. Many ethical codes acknowledge this distinction but rarely explain the difference sufficiently to provide practical guidance. And, frankly, if criminal defense is characterized as "different," then indigent defense should probably be described as "peculiar." When the attorney-client relationship is formed not by client choice, but by judicial appointment, dilemmas arise beyond those traditionally recognized in ethics codes. Moreover, prevailing indigent defense delivery systems are not uniform and generate unique ethical issues. To its credit, the Restatement of the …

Assurances Of Objectivity, Jeremy Waldron

Faculty Articles

Book review of Kent Greenawalt, Law and Objectivity, Oxford University Press, 1992.

From Authors To Copiers: Individual Rights And Social Values In Intellectual Property, Jeremy Waldron

Faculty Articles

Our tendency of course is to focus on authors when we think about intellectual property. Many of us are authors ourselves: reading a case about copyright we can empathize readily with a plaintiff's feeling for the effort he has put in, his need to control his work, and his natural desire to reap the fruits of his own labor. In this Essay, however, I shall look at the way we think about actual, potential and putative infringers of copyright, those whose freedom is or might be constrained by others' ownership of songs, plays, words, images and stories. Clearly our concept …

Labor Law Successorship: A Corporate Law Approach, Edward B. Rock, Michael L. Wachter

Faculty Articles

In this article, we take an approach fundamentally different from that of the labor law commentators. We start from a broader perspective than is common: successorship is as important an issue for corporate law as it is for labor law. Given that the two principal inputs to the firm are labor and capital, it would be surprising if the laws for labor law successorship were completely different from the laws for corporate law successorship. To the extent that differences exist, those differences should hinge upon differences between the employees' and the creditors' relationships with the firm. What distinguishes the employees' …

Boyles V. Kerr: The Wrong Decision At The Right Time: Implications For Mental Anguish Damages Under The Dtpa, Charles E. Cantú, Jared Woodfull V

Faculty Articles

Mental anguish jurisprudence has witnessed a tumultuous evolution. Consumer law, as codified in the Texas Deceptive Trade Practices Act, has been uniquely impacted by the evolving law of mental anguish.

Recently, the Texas Supreme Court reaffirmed the standard for recovery of mental anguish damages under the DTPA. In the case of Boyles v. Kerr, the Texas Supreme Court had the opportunity to reconcile mental anguish damages under the DTPA with mental anguish jurisprudence. However, instead of aggressively recognizing one’s interest in their emotional well-being, the court retreated, reversing almost a decade of mental anguish jurisprudence.

This recently reaffirmed standard for …

Twenty-Five Years Later-For Better Or Worse, Faye M. Bracey

Faculty Articles

State bar associations, which once operated in a small guild atmosphere, have become full-fledged administrative bodies. When bar associations came into existence in the late nineteenth century, they concentrated on setting admission requirements. Today, every state has admission requirements involving age, educational requirements, and skills examinations. In contrast to their earlier period, bar associations today concentrate more on providing social programs, educating members, and regulating the profession. This essay will discuss other fundamental changes in the legal profession that occurred from 1968-1993.

The More Things Change, The More They Stay The Same: The Employment-At-Will Doctrine In Texas, Bonita K. Roberts

Faculty Articles

The Texas Legislature should reject the employment-at-will doctrine in Texas. A carefully crafted new law could be created through the assessment of both the Montana Wrongful Discharge from Employment Act and the Model Employment Termination Act (“META”), approved by the National Conference of Commissioners on Uniform State Law. Texas recognizes common-law and statutory exceptions to the employment-at-will doctrine. However, the statutory and common-law exceptions to the employment-at-will doctrine do not swallow the rule; instead, they constitute random, narrow efforts affording employees few protections while requiring employers to defend their decisions on a costly, piecemeal basis.

The Montana Employment Act protects …

Ordinary Sacraments, Emily A. Hartigan

Faculty Articles

Richard Parker is a true force in constitutional thought, and his Populist commitment finds fertile landscape. However, there is something missing from his account of populism—the role of reflection and the fear of God in human affairs. Parker never deals with the fact that “the people” believe in God. Despite the intellectualist drive to separate God from politics, most Americans do not maintain such a wall. Whether under a stultifying separationist doctrine or in a more open pluralism, the people are God-fearing in an increasingly fractured and fascinating way—they are recognizably, fundamentally religious. Parker advocates being in touch with what …

Drafting A Constitution: A Friendly Warning To South Africa, Richard A. Epstein

Faculty Articles

I am happy to have received this opportunity to respond to Professor Herman Schwartz's presentation on what South Africa could learn from the American constitutional experience. My views of substantive provisions of the proper constitution differ sharply from those of Professor Schwartz in the American arena, and these differences will surely carry over to a discussion of what South Africa might learn from the American experience, now that it must confront its own tortuous transformation into a democratic nation. My remarks contain a warning against much of the conventional wisdom about what is right and wrong in constitutional building in …

Dialogue And Judicial Review, Barry Friedman

Faculty Articles

Most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The process of constitutional interpretation does not set electorally accountable government against unaccountable courts. The premise of electorally accountable decision making assumes an identifiable majority actually exists. In addition, the premise of judicial interference assumes that judicial decisions are final, when they are not. A more accurate view of the constitutional system needs to take into account constituency representation, the spaciousness of the constitutional text, and the dynamic nature of constitutional interpretation. The actual role of judicial review is dialogic. The courts interpret the …

Comparative Remarks On Liability For One's Own Acts, Franco Ferrari

Faculty Articles

The purpose of this Article is to outline the laws of torts as it varies with each country's legal system in order to illustrate that the actual differences between the systems are not too relevant. Indeed, generally, "where a plaintiff would recover in France, he would recover, too, in England." Apart from some unique rules, for example punitive damages in common law, compensation for wrongful death of a cohabitating partner in some French based systems, and compensation in kind in some German based systems, the tort law of the various countries tends to produce the same consequences. This affirmation presupposes …

The Lord In The Law: Reflections On A Catholic Law School, Aloysius A. Leopold

Faculty Articles

The symbiosis between law and morality has played a major role in universities since their formation and is critical to our moral and legal future. Each is dependent on the other, and an attempt to separate the two will seal the fate of our society as a whole. The Catholic law school must ensure that this symbiosis is never broken, but is fulfilled by incorporating relevant new courses and by teaching present classes in light of the Catholic message. Further, Catholic defense clinics should be offered to enrich the lives of others, and priests and nuns should be made available …

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …

A New Look At An Old Conundrum: The Determinative Test For The Hybrid Sales/Service Transaction Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

Historically, the concept of strict tort liability was confined to two areas: injuries resulting from dangerous activities, and harm inflicted by wild and/or dangerous animals. However, in 1963, the California Supreme Court held in Greenman v. Yuba Power Products that the theory of strict liability in tort also included products. Then, in 1965, The Restatement (Second) of Torts adopted Section 402A and endorsed the theory of Greenman that strict liability was available as a distinct cause of action in litigation involving injuries caused by defective products.

Though there was some initial confusion associated with the application of some of the …

Twenty-Five Years Of Strict Product Liability Law: The Transformation And Present Meaning Of Section 402a, Charles E. Cantú

Faculty Articles

Twenty-five years ago, the American Law Institute had just published Section 402A of the Restatement (Second) of Torts. As a consequence of this new and innovative rule, the theory of recovery in the area of defective products was expanded from a system based on principles of negligence and warranty to one that also included the doctrine of strict product liability. The promulgation of Section 402A marked the beginning of a growing revolution in the field of plaintiff-oriented litigation in which parties and courts frequently center their inquiry upon the defectiveness of the product and issues related thereto, rather than on …

Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan

Faculty Articles

Section 26 of the Nebraska Constitution, much like everything affirmative that humans do, is immediately flawed. The flaw sits literally right below this heartfelt declaration of the people’s sovereignty, in an annotation provided for section 26 in the Revised Statutes of Nebraska. This annotation cites State v. Moores, but recites also that the case was overruled, which is wrong for a number of reasons. First, not only does this conflict with other annotations to the same Bill of Rights citing the very same case, but it also ignores the inadequacy of the supposed “overruling” and the existence of an explicit …

Surprised By Law, Emily A. Hartigan

Faculty Articles

This year’s Association of American Law Schools convention provided a genuinely engaging panel discussion between Michael Sandel and Judge Stephen Reinhardt. Michael Sandel, Harvard philosopher of community and the “encumbered self,” delivered his defense of an ethics of appreciation which goes beyond mere toleration, arguing for honor for persons rather than mere dignity. Reinhardt countered by characterizing Sandel’s stuff as the sort of academic theorizing which has nothing much to do with the world, and raised with almost unconscious elegance the main issue, and a deeply troubling concrete dilemma.

Reinhardt noted that Sandel’s portrait of the person did not work …

Jag Corps Poised For New Defense Missions: Human Rights Training In Peru, Jeffrey F. Addicott

Faculty Articles

The National Command Authority has cited the dissolution of the Soviet Union as cause for the United States Military to expand its role. In addition to its traditional role of fighting wars, the military will take on new nontraditional roles promoting human rights and the rule of law throughout the world. These new military missions will include peacekeeping operations, humanitarian interventions, disaster relief missions, counter-drug activities, and nation-building activities.

As part of this initiative, the United States Judge Advocate General’s Corps (JAGC) provides legal assistance to the militaries of several emerging and struggling democracies. A number of foreign armies and …

Evolution And Revolution In Family Law, Victoria M. Mather

Faculty Articles

Family law has significantly changed over the last twenty-five years, and certain areas will likely continue to change. Family law tends to follow, rather than lead, social upheaval and adjustment in family decisions and structures. The most important legal changes in family law are a result of massive shifts in American social, political, and economic constructs in the 1960s, 1970s, and 1980s.

Family law will continue to evolve because of three critical developments. First is the expansion of the concept of what constitutes a “family” in the modern context. Next is the treatment of children as autonomous individuals, separate and …

Polishing The Tarnished Golden Door, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Labor Law Reform In A World Of Competitive Product Markets, Samuel Estreicher

Faculty Articles

The falling fortunes of the organized labor movement do not, standing alone, establish a case for reform of existing arrangements. However, whatever our views of unions, collective bargaining, strikes, and the like, the prospect of a virtual disappearance in private firms of mechanisms for employees to have a say in the terms and conditions of their employment should be a cause for public concern. With a new labor-friendly administration in Washington, and the appointment of the Commission on the Future of Worker-Management Relations (chaired by former U.S. Secretary of Labor John T. Dunlop), a window of opportunity has opened to …