Digital Commons Network^™

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 …

Compensation Systems And Efficient Deterrence, Jennifer H. Arlen

Faculty Articles

Most people agree that the tort system is in serious need of re- form: victims often cannot afford the expense or the delay associated with pursuing their claims to resolution, successful plaintiffs with serious physical injuries are undercompensated, and potential defendants complain of crushing liability, much of which goes to administrative costs-including attorneys fees-and not to victims. It is not surprising, then, that legal scholars and legislators are increasingly interested in alternatives to the tort system, such as the administrative compensation plans presented in this Symposium.

Copyright Protection: Has Look And Feel Crashed?, John M. Walker Jr., Jessica D. Litman, Susan G. Braden, Anthony L. Clapes, Henry B. Gutman, Rochelle C. Dreyfuss, Marci A. Hamilton

Faculty Articles

Symposium on copyright protection for computer software held on March 22, 1993 at the Benjamin N. Cardozo School of Law, New York, New York.

Bargaining, Class Representation, And Fairness, Nancy Morawetz

Faculty Articles

This Article argues that regardless of how the institutional issue is resolved between class action attorneys, the courts, and other institutions, class representation demands a more careful articulation of how to resolve questions of a just distribution among the members of the class. An understanding of just distribution is needed for all aspects of class representation, but is perhaps most crucial for settlement negotiations. In the settlement context, distributional choices can be very stark. The class lawyer must face squarely the value of different aspects of relief and the extent to which one form of relief may be traded for …

Religious Contributions In Public Deliberation, Jeremy Waldron

Faculty Articles

In 1986, the National Conference of Catholic Bishops published a "Pastoral Letter on Catholic Social Teaching and the U.S. Economy," entitled Economic Justice for All. They addressed the letter to "Brothers and Sisters in Christ," and began as follows: 'We are believers called to follow Our Lord Jesus Christ and proclaim his Gospel in the midst of a complex and powerful economy. This reality poses both opportunities and responsibilities for Catholics in the United States. . . .This letter is a personal invitation to Catholics to use the resources of our faith, the strength of our economy, and the opportunities …

The One And The Many: Adjudication In Collegial Courts, Lewis A. Kornhauser, Lawrence G. Sager

Faculty Articles

This Article explores a problem that may occur in appellate cases in which two or more issues present themselves. In these problematic cases, the court may reach a decision as to outcome in one of two ways, either by summing the votes of individual judges as to the outcome of the case overall, or by summing the votes of individual judges on each of the issues and then combining the results. The two methods of decisionmaking can lead to different results. This "doctrinal paradox" is unfortunate because cases are supposed to be decided on their merits rather than by an …

Expressive Harms, "Bizarre Districts," And Voting Rights: Evaluating Election-District Appearances After Shaw V. Reno, Richard H. Pildes, Richard G. Niemi

Faculty Articles

This article attempts to define the constitutional principles that characterize Shaw and to suggest how those principles might be applied in a consistent, meaningful way. Part I, in which we argue that Shaw must be understood to rest on a distinctive conception of the kinds of harms against which the Constitution protects, is the theoretical heart of the article. We call these expressive harms, as opposed to more familiar, material harms. In Part II, we briefly survey the history of previous, largely unsuccessful, efforts in other legal contexts to give principled content to these kinds of harms in redistricting. Parts …

Comparative Ruminations On The Foreseeability Of Damages In Contract Law, Franco Ferrari

Faculty Articles

These brief observations should be sufficient to disprove the -statement that the "foreseeability limit" as laid down in CISG article 74 corresponds to a rule which finds its source in common law rules. And it is on the basis of this conclusion that one can divide all legal systems into four different categories: the countries which recognize the "foreseeability" limit as laid down in French law; the countries which are somehow based on the Hadley rule; the legal systems which ignore the limit at issue, except for international sales contracts, such as Germany; and those systems which do not recognize …

Rethinking Indigent Defense: Promoting Effective Representation Through Consumer Sovereignty And Freedom Of Choice For All Criminal Defendants, Stephen J. Schulhofer, David D. Friedman

Faculty Articles

Part I of the Article analyzes the structure of the attorney-client relationship and identifies the problems that contractual or institutional arrangements must seek to minimize. Part I describes existing methods for the delivery of indigent defense services and assesses their ability to address these problems. Part III develops alternatives to existing arrangements. We consider three groups of approaches: insurance models, deregulation models and voucher models. We conclude that insurance models, though theoretically revealing, are impractical. Deregulation models offer an immediate, easily implemented but partial solution. The more ambitious voucher models, adapted to local conditions in various jurisdictions, provide a practical …

The Right To Health Care In The United States, Ken Wing

Faculty Articles

This article provides an analysis of the history of constitutional interpretation in the United States, and reveals that any right Americans have to health care is a political rather than constitutional right.

Labor, Loyalty, And The Corporate Campaign, Melinda J. Branscomb

Faculty Articles

This article critically assesses the disloyalty test, offering badly needed guidance in this murky and risky area of labor law. Part I provides an overview of the relevant portions of the Act and the problems facing the National Labor Relations Board (NLRB or the Board) and the courts as these decision makers interpret section 7 law. It reviews the early section 7 exceptions, the creation of the disloyalty test, and the aftermath of this new exception, and it introduces a number of problems left as Jefferson Standard's legacy. Part II discusses the analytical inconsistency applied in disloyalty doctrine analysis 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 …

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 …

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 …

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 …

In A Different Register: The Pragmatics Of Powerlessness In Police Interrogation, Janet Ainsworth

Faculty Articles

In a majority of states, a suspect is deemed to have invoked the Miranda right to counsel only if the suspect's request is clear and unequivocal. This doctrine is challenged as an insufficient protection of constitutional rights. It is argued that courts should treat even ambiguous and equivocal requests as per se effective innovations of the right to counsel.

Sex Stories: A Review Of Sex And Reason, Margaret Chon

Faculty Articles

In this review of Sex Stories-A Review Of Sex And Reason by Richard A. Posner, Professor Chon explores the implications of Posner’s exuberant faith in bioeconomic reasoning, unalloyed by any of the late modernist or postmodernist challenges to the nature and limits of science and its transformative potential. In doing so, Professor Chon attempts three things. First, she discusses some of his sociobiological assertions in order to demonstrate that evolutionary biology consists of a much richer and more contradictory set of assertions than Posner would have us believe. Even within the empiricist framework, therefore, Posner leaves out many stories that …

Toward An Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, And Narrative Space, Robert S. Chang

Faculty Articles

As Asian Americans join the legal academy in growing numbers, they change the face of the academy and challenge its traditional legal doctrines. The author announces an "'Asian American Moment" in the legal academy and an opportunity to reverse the pattern of discrimination against Asian Americans. Traditional civil rights work and current critical race scholarship fail to address the unique issues for Asian Americans, including nativistic racism and the model minority myth. Space must be made in the legal academy for an Asian American Legal Scholarship and the narratives of Asian Americans. The author asserts that the rational-empirical mode is …

Woman's Ghetto Within The Legal Profession, Marilyn Berger, Kari A. Robinson

Faculty Articles

In this article, we explore how the historical, stereotypical images of women as the timid, delicate caretaker shaped and continue to shape women's roles in the work force. As women entered the workplace, they became nurses, not doctors; dental hygienists, not dentists; paralegals, not lawyers; and kindergarten teachers, not university professors. This pattern persists today. We examine the professions to show how women's nurturing caretaker image has resulted in special niches within the professions, positions which perpetuate women in caretaker roles. Specifically, we examine the legal profession and probe the contemporary barricades erected to channel women into positions that fulfill …

Abortion And The Pied Piper Of Compromise, Annette E. Clark

Faculty Articles

In this article, Professor Clark offers a detailed analysis of the controversy among legal scholars which has long surrounded the issue of legal regulation of abortion. Professor Clark begins by focusing on a recent book by Professor Laurence Tribe, Abortion: The Clash of Absolutes. She argues that although Tribe claims to seek a compromise solution to the abortion problem, he fails in this pursuit both because he does not truly search for compromise and because he is unwilling to explore intermediate moral or legal positions that are not acceptable to either the pro-choice or pro-life movements. In contrast, Professor Clark …

Commerce & Communication, David Skover, Ronald Collins

Faculty Articles

As the lead piece in a Colloquy entitled The First Amendment in a Commercial Culture, this article argues that, in our culture of advanced capitalism, public discourse cannot significantly be separated from the influences of commercialism. To understand the First Amendment, we must look beyond cases and commentary to the actual ways in which our culture communicates about and through commodities. We must think less about the marketplace of ideas and more about the marketing of items.

The Psychology Of First Amendment Scholarship: A Reply, David Skover, Ronald Collins

Faculty Articles

This essay was written as an afterword to the Colloquy entitled The First Amendment in a Commercial Culture, as a reply to commentaries on "Commerce & Communication" authored by Leo Bogart (advertising expert), Sut Jhally (professor of communications), Alex Kozinski (federal appellate judge) & Stuart Banner (attorney), and Rodney Smolla (law professor). The authors, Professors Skover and Collins, had hoped that Commerce & Communication would prompt new debate and discussion about certain First Amendment issues. However, judging from thier colleagues' reactions, there may well be more of the former than the latter. But in the scheme of things, who's to …

Postmodern 'Progress': Reconsidering The Copyright And Patent Power, Margaret Chon

Faculty Articles

This article undertakes a postmodern analysis of the term ‘Progress’ in the Constitution’s Copyright Clause, finding stewarding the production of knowledge is integral to the clause. First, by deconstructing the linear, forward assumption entailing Progress. As technology concentrates, Progress entails distributional fairness and decentralized control over knowledge. Relying on the writings of the Founders and recent copyright decisions, this article does not limit postmodernism to a theory recognizing that words have multiple meanings, instead it argues that the Copyright Clause transforms the idea of knowledge to a common resource like water and air, and places knowledge into a public trust, …

Blackmailers, Bribe Takers, And The Second Paradox, Sidney Delong

Faculty Articles

An adequate theoretical justification for the prohibition of blackmail should explain both of its paradoxes. However, a review of contemporary theories of blackmail shows that they are able neither to explain why blackmail is criminalized nor to rationalize the different treatment of blackmail and bribery. This review suggests that the paradoxes of blackmail may not yield to rational analysis. In contrast to deductive analyses premised on rights or economics, this paper offers an account of bribery and blackmail that is premised on their different social meanings. The author suggests that the legal and moral treatment of bribery and blackmail spring …

Praetorianism & Common Law In Post-Colonial Settings: Judicial Responses To Constitutional Breakdowns In Pakistan, Tayyab Mahmud

Faculty Articles

The successive constitutional crises that confronted the Pakistani courts were not of their own making. But the doctrinally inconsistent, judicially inappropriate, and politically timid responses fashioned by these courts ultimately undermined constitutional governance. When confronted with the question of the validity and scope of extra constitutional power, the courts vacillated between Hans Kelsen's theory of revolutionary validity, Hugo Grotius's theory of implied mandate, and an expansive construction of the doctrine of state necessity. A more principled and realistic response would have been to declare the validity of extra constitutional regimes a nonjusticiable political question. Besides ensuring doctrinal consistency, a refusal …

Rethinking Advocacy Training, Marilyn Berger, John Mitchell

Faculty Articles

This article examines advocacy teaching methodology and how to impart to students and beginning attorneys the methods and approaches that experienced trial lawyers use.

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 …

Does The Reasonable Woman Exist And Does She Have Any Place In Hostile Environment Sexual Harrassment Claims Under Title Vii After Harris (Student Note), Liesa L. Richter

Faculty Articles

No abstract provided.

Good Cause And Just Expectations: Academic Tenure In Oklahoma's Public Colleges And Universities, Harry F. Tepker

Faculty Articles

No abstract provided.

Polishing The Tarnished Golden Door, Michael A. Scaperlanda

Faculty Articles

No abstract provided.