Digital Commons Network^™

Property, Speech, And The Politics Of Distrust, Richard A. Epstein

Faculty Articles

My task in this article is not an enviable one: It is to persuade you that the dominant mode of thinking about property rights during the past fifty years has been a mistake of constitutional dimensions. It would be convenient if I could say that I merely favor a return to the set of doctrines that governed economic liberty and property before 1937, in the so-called Lochner era. Yet that description would understate the difference between my views and the historical evolution of the law. Some of the most restrictive decisions on property rights took place in the years before …

Tuskegee Modern, Or Group Rights Under The Constitution, Richard A. Epstein

Faculty Articles

The subject of this brief Article is captured only inadequately by its title: Tuskegee Modem. For those of us who still remember Gomillion v. Lightfoot, this title should evoke a certain sense of d6jh vu. Gomillion was hailed as an obvious advance for its time, for it accomplished what was thought to be morally necessary, by decisively moving the law forward into uncharted waters. Tuskegee had been laid out as a perfect square before the Alabama legislature converted the city into a "strangely irregular twenty-eight-sided figure."' The purpose and effect of the legislation was to eliminate from the city's rolls …

Property As A Fundamental Civil Right, Richard A. Epstein

Faculty Articles

In this article, therefore, I address two major questions. In part one I shall examine what a general theory of property rights has to say about the anticipated shape and variety of property rights in different forms of resources. In particular, I look at two features that I think account for the importance of property rights, their universality and their utility, and show how these relate to the traditional rules of property-acquisition, protection and transfer. Part two then continues this inquiry by asking how the same set of general considerations leads to a wide range of different solutions to the …

An Economic And Political Look At Federalism In Taxation, Daniel N. Shaviro

Faculty Articles

Part I of this article examines the reasons for preferring locationally neutral taxes and explains the basic tension between locational neutrality and state and local autonomy in taxation. Part II examines the federal judicial check on state and local taxation, which often relies on a principle barring discrimination against outsiders or interstate commerce. Part III explores the need for a broad federal judicial check by examining state and local governments' reasons for imposing (or avoiding) locationally distortive taxes, the countervailing benefits of allowing such governments broad autonomy in taxation, and Congress' willingness to strike down locationally distortive taxes under its …

Why D’Oench, Duhme? An Economic, Legal, And Philosophical Critique Of A Failed Bank Policy, Richard E. Flint

Faculty Articles

In 1942, the Supreme Court handed down its decision in the case of D’Oench, Duhme, & Co. c. FDIC. This decision established an equitable estoppel under the umbrella of federal common law to protect the insurance fund of the Federal Deposit Insurance Corporation (FDIC) from secret agreements between borrowers and banks which misrepresented the value of a bank’s assets.

In the last fifty years, the D’Oench doctrine has been greatly expanded by the courts, and its purported legislative counterpart, 12 U.S.C. Section 1823(e) has enjoyed similar expansion. More recently, courts have even created a fiction by holding that the FDIC …

When “Special Needs” Meet Probable Cause: Denying The Devil Benefit Of Law, Gerald S. Reamey

Faculty Articles

Removing laws to pursue the lawbreaker may be well intentioned, but the result is that society is susceptible to the evils those laws protect against. The traditional Fourth Amendment safeguards--probable cause and warrants--have been abandoned due to the development of a reasonableness standard because of the presence of “special needs” that were used to justify searches. The adoption of this alternative approach to Fourth Amendment interpretation was signalled by the truly landmark case of Terry v. Ohio.

By adopting the “reasonableness” analysis, the Supreme Court altered the impact of the exclusionary rule without directly modifying the rule. After Griffin v. …

No Harm, No Foul: Pornography (Violent And Otherwise), Victoria M. Mather

Faculty Articles

At the heart of the entire pornography debate is the lack of understanding or agreement of what is regulated. Society does not agree about what pornography means, what is hardcore or softcore, what is obscene, or what is "adult." The disagreement tends to derive from two very different viewpoints—the liberal view, and the feminist view. On the liberal side of the debate, pornography should be protected speech but on the feminist side, society should take into account the feminist perspective and the harmful effects of these graphic depictions.

Applying the Miller-Roth test, liberals believe that pornography is protected speech until …

Erisa: Anti-Alienation Superiority In Bankruptcy, George Lee Flint Jr

Faculty Articles

Both ERISA and the Bankruptcy Code consider the issue of debtor-participant’s interest in certain pension trusts when an action has been undertaken against the bankrupt debtor participant’s estate. Many jurisdictions have offered conflicting views on the handling of the interest. These conflicts create litigious interpretation and choice of law problems and place plan administrators at risk for breach of fiduciary duty depending on jurisdictional interpretation. Paying-out a bankruptcy trustee’s turnover demand could affect the tax qualified status of the pension plan, thereby hurting all plan participants. ERISA’s preemption provision was drafted to create uniformity among the states in interpreting employee …

The International Law Of The Environment From The U.S. Perspective: A Case Study: The U.S. And Mexico, Robert Summers

Faculty Articles

The subject of public international law is vast, rich and varied, thus offering the potential to explore many interrelated topics ranging from the lofty philosophical precepts of positivist and naturalist thought to the technical intricacies of international business transactions. Many of these topics are also historically relevant to the long and often inclement history of Mexican-U.S. relations. These include the law of war, peace and neutrality, self-determination, territory, recognition, and diplomatic and consular privileges and immunities. Regrettably, the allotment of time and space for the subject of public international law in the Joint Venture Program does not allow discourse on …

Applying Edgewood V. Kirby To Analysis Of Fundamental Rights Under The Texas Constitution, Albert H. Kauffman

Faculty Articles

State constitutions are affirmative grants of power under which both stated and implied fundamental rights can be sought. A proposed test for fundamental rights under the Texas Constitution looks at three factors: the history of the topic within the Texas Constitution and case law; the actual language used in the controlling provision; and the importance of that value to the people of Texas. The declaration of a constitutional right as fundamental certainly has implications for future relationships between the people and the government.

The Edgewood v. Kirby case has the potential to change much in Texas. The case stands for …

Oklahoma's Evolving Employment Law: Clarifying The At-Will Rule, Harry F. Tepker

Faculty Articles

No abstract provided.

Conceptions Of Value In Legal Thought, Richard H. Pildes

Faculty Articles

Reviews Love's Knowledge by Martha C. Nussbaum (Oxford University Press 1990).

School Choice And The Lessons Of Choctaw County, Helen Hershkoff, Adam S. Cohen

Faculty Articles

In the past year, school choice has emerged as a leading proposal for addressing the current crisis in American education. President Bush has made choice a cornerstone of his educational reform plans, and a growing number of educational theorists are promoting choice as a remedy for the problems of the nation's schools. As one education law scholar recently observed, "choice is hot." It is understandable that choice proponents would be reluctant to invoke the emergence of segregation academies throughout the South when they discuss the historical antecedents of parental choice. This era of Southern "massive resistance" to school desegregation was …

Habeas And Hubris, Barry Friedman

Faculty Articles

This article develops a more convincing rationale for Teague than that provided by the Court but nonetheless concludes the Court erred seriously in deciding as it did. Part II of this Article describes the rule and impact of the Teague cases and criticizes the disingenuous road the Court took to its decision. Part III offers an alternative explanation for Teague. This part explains that just as the Supreme Court created habeas corpus jurisdiction for the very purpose of expanding and protecting due process rights, so the Court may constrict the availability of the writ if it perceives that the job …

Information As Speech, Information As Goods: Some Thoughts On Marketplaces And The Bill Of Rights, Diane L. Zimmerman

Faculty Articles

The friction between information as a common resource and information as a privately controlled good is a modern legal conflict, but it has roots deep in three centuries of legal history. This Article represents an attempt to understand the reasons for the discontinuities between the two approaches to speech and to indicate, in a preliminary way, some principles that might help to find a path out of the existing thicket. It begins by exploring the evolution of the assumptions and values that presently inform the property and speech categories. The reason for this look backward is that the attitudes and …

Bankruptcy And Risk Allocation, Barry E. Adler

Faculty Articles

Part I of this Article first describes the basic creditors' bargain heuristic. This model is the standard justification for bankruptcy's general supplantation of private contract rights, most notably the right to collect unilaterally on a debt obligation in default. The creditors' bargain model suggests that creditors of an insolvent debtor prefer bankruptcy's collective proceeding to individual collection actions because a collective proceeding preserves a more valuable debtor to divide among the claimants. Bankruptcy is necessary, the heuristic reveals, because creditors would find it difficult collectively to reach this efficient outcome. Part I next explains how bankruptcy law reallocates contractual priorities …

Claims By Non-State Groups In International Law, Benedict Kingsbury

Faculty Articles

The remainder of this article will be structured as follows. Section II will examine the five domains of discourse within which claims by non-state groups are typically expressed in international law. Section III will discuss the presently unsolved problem of how the principle of selfdetermination can be reconciled with the concern of states to maintain their territorial integrity and with the concern of the international community not to risk unlimited fragmentation of existing states. Section IV will use a recent case study relating to the three general domains of discourse to illustrate the difficulties of developing ad hoc responses to …

International Trade And Environment: Lessons From The Federal Experience, Richard B. Stewart

Faculty Articles

This Article has two objectives. First, the Article will develop a conceptual framework for analyzing the interrelationship between trade restraints and environmental protection policy. Second, it will draw from the experiences of two federal-type political systems-the United States and the European Community-potential lessons for the international institutional treatment of trade and environment issues. The Article does not deal with many other aspects of trade and environment issues, such as the use of pollution-control subsidies, or the impact of trade liberalization on environmental quality, or whether treaty negotiations should be subject to environmental assessment procedures. Nor does it offer a detailed …

Gender Is For Nouns, Richard A. Epstein

Faculty Articles

The reason why I say, therefore, that gender is for nouns and not for persons is that I do not wish the choice of title to require me to buy in, or even hint at buying in, to that particular world view that I have just criticized. The older term, which refers to sex differences and treats them as comprehensive in their importance and their influence, better captures the position that I wish to defend here. So I choose the term that is congruent with my position. Having broken from modern convention on a point of principle, I think it …

Polarized Voting And The Political Process: The Transformation Of Voting Rights Jurisprudence, Samuel Issacharoff

Faculty Articles

This article attempts to provide an analytic framework for the evolved voting rights law as it confronts the persistent effects of racial factionalism in the electoral arena. Insight into the corrosiveness of racially polarized voting and its frustration of minority electoral opportunity has organized and guided the new voting rights jurisprudence. This article will argue that the combination of process distortions from majority domination of electoral outcomes and substantive deprivation from minority exclusion defines this area of law and protects it against challenge from currently fashionable academic currents. The central insights gathered from the focus on polarized voting, I will …

Environmental Law In The United States And The European Community: Spillovers, Cooperation, Rivalry, Institutions, Richard B. Stewart

Faculty Articles

Because of these historical and institutional differences, the evolutionary path of environmental policy is far more indeterminate in the Community than in the United States. In Europe, economic and political integration is ongoing but incomplete, not only shaping but also shaped by the development of environmental policy. Nonetheless, there are important functional similarities in the types of environmental problems presented in a federal system such as the United States and in supranational systems such as the Community. Most important are the different types of spillovers-pollution, product, competitive, and preservation-that occur among Member States. The welfare losses caused by these spillovers …

Law And Lawyering: Legal Studies With An Interactive Focus, Peggy C. Davis

Faculty Articles

A microanalysis of simulated examples of informal advocacy is presented to explore the effects that narrative choices and interactive signals of deference or dominance influence the effects of a legal advocate’s speech.

What Do Workers Want? Employee Interests, Public Interests, And Freedom Of Expression Under The National Labor Relations Act, Cynthia Estlund

Faculty Articles

Section 7 has been interpreted to protect only empioyee speech relating to terms and conditions of employment, while the First Amendment now protects public employees only when they speak on "matters of public concern." To a great extent, then, the kinds of protests that in the private sector are covered by section 7-those concerning the terms and conditions of employment-are unprotected by the First Amendment in the public sector. Conversely, the protests covered by the First Amendment-those on "matters of public concern"-lie beyond the scope of section 7 in the private sector. This largely unexplored aspect of section 7 doctrine …

Corporate Law Through An Antitrust Lens, Edward B. Rock

Faculty Articles

Do antitrust and corporate law have much to say to each other? Judges, lawyers, law professors, and law students all seem to think that they do not. Antitrust is about markets; corporate law is about firms. Antitrust is about competition; corporate law is about cooperation. Antitrust regulates relations among firms; corporate law governs relations within fmns. In this Article, I argue that this common view is fundamentally flawed. When shareholders are also competitors, the normal corporate law instinct that collective action should be facilitated fails. At the borderline between firms and markets, antitrust, with its more subtle appreciation for the …

Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey

Faculty Articles

When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur. …

Equitable Apportionment In Oklahoma: What Hath The Courts Wrought?, Mark R. Gillett

Faculty Articles

No abstract provided.

Perfecting The Special Use Election: Congress Giveth, And The Service Taketh Away, Mark R. Gillett

Faculty Articles

No abstract provided.

Evidence Of Religion And The Religion Of Evidence, Michael S. Ariens

Faculty Articles

When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim. Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good. However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional. In light of this inherent difficulty of evidence of religion, …

The Twenty-Fifth Anniversary Of My Lai: A Time To Inculcate The Lessons, Jeffrey F. Addicott, William A. Hudson Jr

Faculty Articles

The spring of 1993 marks the twenty-fifth anniversary of the My Lai massacre and is an appropriate time to reinforce the lessons learned from the event. Each and every grave breach of the law of war represents a horrible scar on the credibility of the American military, as well as the civilized democracy it protects. In this context, My Lai stands as the greatest emblem of American military shame in the twentieth century. Nothing provides a greater vehicle for inculcating the necessity for strict adherence to the law of war than the lessons from the massacre at My Lai.

While …

Speaking Of Rights, Janet Ainsworth

Faculty Articles

Professor Janet Ainsworth reviews Rights Talk: The Impoverishment of Political Discourse, by Mary Ann Glendon. The thesis of Mary Ann Glendon's book is a provocative one: that the way in which Americans talk about rights is dangerous to our political and social well-being as a nation. Professor Ainsworth explores the specifics of rights discourse that Glendon describes, and provides a thorough critique of Rights Talk.