Digital Commons Network^™

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 …

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

Faculty Articles

No abstract provided.

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.

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.

Yee V. City Of Escondido: The Supreme Court Strikes Out Again, Richard A. Epstein

Faculty Articles

Of the four decisions before the Supreme Court, one - PFZ Properties, Inc. v. Rodriguez - was dismissed on the ground that certiorari was improvidently granted. A second, Nordlinger v. Hahn, resulted in a clean victory for the State of California with its "welcome stranger" system of real estate taxation. A third, Lucas v. South Carolina Coastal Council, gave some limited protection to landowners in land-use settings. But its importance is limited because the Court appears to have adopted a powerful "hands off" attitude to all forms of partial restrictions on land use-a subject that dwarfs the importance of the …

The Authoriarian Impulse In Sex Discrimination Law: A Reply To Professors Abrams And Strauss, Richard A. Epstein

Faculty Articles

The papers of Professors Kathryn Abrams and David Strauss represent the stock responses to my basic position outlined in Gender Is for Nouns. While both Professors Abrams and Strauss recognize that some reform of current antidiscrimination law might be in order, they do not specify what shape such reform might take; but, by the same token, they do reject as precipitate and unwise my recommendation that the entire structure of the employment discrimination laws be dismantled, at least insofar as it applies to private employers. I think that a careful consideration of their arguments should lead the disinterested reader to …

The Jurisprudence Of Genetics, Rochelle C. Dreyfuss, Dorothy Nelkin

Faculty Articles

Our focus is on the impact of genetic research on traditional legal concepts. Genetics has profoundly altered the perception of personhood within our culture. This change has, in turn, challenged many of the core principles on which current norms are based and has compelled lawmakers to reconsider the legal rules that mediate the relationships among persons and between individuals and the broader community. Thus, we see this research as influencing not only the factual answers available to the decisionmaking process, but also the questions that are framed and the terms that are used in the debate.

Standing On Firmer Ground: Separation Of Powers And Deference To Congressional Findings In The Standing Analysis, Christopher J. Sprigman

Faculty Articles

This Comment is organized in three parts. Part I reviews current standing law and explores its shortcomings. Part II examines the D.C. Circuit's decision in Center for Auto Safety v Thomas, where the debate over deference to congressional findings began, and traces the development of the issue in three subsequent D.C. Circuit cases: Dellums v Nuclear Regulatory Comm'n, United Transportation Union v Interstate Commerce Comm'n, and City of Los Angeles v National Highway Traffic Safety Admin. Using these cases as a framework, Part III argues that separation of powers considerations compel deference to congressional findings on facts underlying causation and …

The Law Of Evidence And The Idea Of Progress, Michael S. Ariens

Faculty Articles

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view. However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs. What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter.

Consideration of these aspects of evidence law …

Modern Legal Times: Making A Professional Legal Culture, Michael S. Ariens

Faculty Articles

Lawyers’ belief in their professionalism was fostered by the creation and development of modern legal institutions. Law schools, bar associations, organizations like the American Law Institute, as well as the system of legal directories, the regional case reporter system, and continuing legal education groups all contributed greatly to the making of a distinctly professional culture of law in America. These institutions prospered in part because of their ideological fit with the professionalizing ethos embodied in Christopher Columbus Langdell’s statement that “law is a science.”

Legal institutions, then, must be evaluated through the ideological lens which encouraged and fostered the notion …

From Righteousness To Beauty: Reflections On Poethics And Justice As Translation, Emily A. Hartigan

Faculty Articles

Both Richard Weisberg and James Boyd White are eminent figures in the academic field of law and literature. As lines between philosophy and literature blur, the stance of “judgment” becomes more like a reflective aesthetic evaluation than a critique through formal logic. Law is, as Weisberg and White agree, more art than science. Yet, for all their contributions to the study of law, including their ostensibly shared realm of mediation, the two create a combative, hierarchic tone of discourse by the near-total exclusion of women from their texts.

Law as conversation is not primarily war through or with words. Rather, …

Judicial Bias, The Insurance Industry And Consumer Protection: An Empirical Analysis Of State Supreme Courts’ Bad-Faith, Breach-Of-Contract, Breach-Of-Covenant-Of-Good-Faith And Excess-Judgment Decisions, 1900–1991, Willy E. Rice

Faculty Articles

Consumers are becoming increasingly dissatisfied with the services and products that the American insurance industry provides. Correspondingly, they are filing an ever-increasing number of lawsuits against insurers in state courts. While courts have ruled equally in favor of insurers and policyholders, advocates for both consumers and the insurance industry strongly believe “judicial bias” or “judicial hostility” permeates state supreme courts.

Some United States Supreme Court Justices have argued that state supreme courts are hostile towards insurance carriers. Commentators have also viciously criticized state supreme courts for being biased against insurance carriers. The contrary view that state supreme courts are anti-consumer …

Erisa: Jury Trial Mandated For Benefit Claims Actions, George Lee Flint Jr

Faculty Articles

When the United States Supreme Court faces the issue of fashioning a federal common law of ERISA, some district courts have suggested it will decide in favor of the right to a jury trial for benefits-due lawsuits. Legislative history indicates that Congress views the benefits-due lawsuit as contractual, realizing both state and federal courts treat them as contractual under pre-ERISA law, even LMRA, and expressly intended to increase the legal remedies under benefits-due lawsuits. Contractual legal remedies require the right to a jury trial. However, even in the absence of legislative history, constitutional provisions mandate a jury trial. This is …