Digital Commons Network^™

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 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.

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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, …