Digital Commons Network^™

Sexual Predator Law: The Nightmare In The Halls Of Justice, Robert C. Boruchowitz

Faculty Articles

The Washington sexually violent predator commitment law presents some of the types of arbitrary legal processes that permeate Franz Kafka's The Trial.

Interpreting Sacred Texts: Preliminary Reflections On Constitutional Discourse In China, Janet Ainsworth

Faculty Articles

The 1982 Constitution of the People's Republic of China provides the foundation for a nation governed by the rule of law rather than by Party fiat. It remains unclear whether and to what extent this ambitious Constitution will be implemented in practice. In her article, Professor Ainsworth asserts that the way in which Western scholars to date analyzed Chinese constitutions demonstrates the ethnocentric assumptions inherent in Western scholarship. Professor Ainsworth suggests that Chinese constitutional discourse needs to be understood in a Chinese context, requiring a historical study of the traditional Chinese exegetical methodology used in interpreting the Confucian Classics. This …

Introduction: Mexican Perspectives On Economic, Political And Cultural Implications Of Free Trade, Henry Mcgee

Faculty Articles

Professor McGee introduces two papers submitted to the 1990 UCLA School of Law seminar entitled Law and Development in Latin America. The first paper, written before the onset of negotiations for a free trade treaty between Mexico and the United States, deals with the then new regulations of the Mexican Secretary of the Treasurer (Secretaria de la Hacienda) designed to sweep away a labyrinth of rules and procedures which had traditionally vexed foreign investors who dealt with the Mexican bureaucracy. The second paper concerns the irony which inheres in Mexico's treatment of Central American immigration, a problem relatively undiscussed in …

What Went Wrong With The Warren Court's Conception Of The Fourth Amendment?, John B. Mitchell

Faculty Articles

This article discusses the current status of police in the United States--police can undertake any and all actions unrestrained by any law but their own. The post-Warren Supreme Courts have held that none of these police activities are "searches" and/or "seizures," and in these courts' Fourth Amendment jurisprudence, that means that these activities are not circumscribed by the Fourth Amendment at all. Thus, in terms of the Constitution, the police are without any judicial supervision and subject to no standards but their own whim. The article explores the reasons for this, and faults the Warren Court for its mishandling of …

Introduction: Multidimensional Lawyering And Professional Responsibility, Margaret Chon

Faculty Articles

Professor Margaret Chon introduces three following articles in which the authors posit the identity of the lawyer not just as client representative, but in the multiple roles of respondent to other people, entities and underlying societal values. Each article contributes to the formation of the self qua lawyer by showing how attorneys can and do respond to foils other than clients.

Judicial And Adminstrative Enforcement Of Individual Rights Under The National Labor Relations Act And Under The Labor-Management Relations Act Between 1935 And 1990 - An Historical And Empirical Analysis Of Unsettled Intercircuit And Intracircuit Conflicts, Willy E. Rice

Faculty Articles

This Article is concerned with exploring the extent to which both the National Labor Relations Act of 1935 and the Labor-Management Relations Act of 1947 have protected individual employees' rights in administrative and judicial proceedings.

Battered Women And Self-Defense: Myths And Misconceptions In Current Reform Proposals, Holly Maguigan

Faculty Articles

A widespread perception exists that contemporary criminal law doctrine cannot accommodate the self-defense claims of battered women who kill abusive men. That perception dominates not only the media, but also current reform discussions both in scholarly literature and in many state legislatures. In response to the dominant belief that traditional self-defense doctrine is inapplicable to these cases, proposals for radical redefinition of various elements of self-defense jurisprudence have been advanced. This Article demonstrates that the belief is wrong and that proposed redefinitions of legal rules will provide neither the necessary nor the sufficient condition for changing the courtroom climate in …

The Unintended Cultural Consequences Of Public Policy: A Comment On The Symposium, Richard H. Pildes

Faculty Articles

Implicit in New Public Law scholarship is a struggle to find ways to incorporate the most provocative insights it has spawned. Most arresting among these is the understanding that private preferences and public values are not static, but rather partially forged by the ongoing content and experience of public policy itself. Under this view preferences can be "adaptive," or "endogenous," or in the catch phrase of the New Left, politics is transformative: of values, experiences, understandings, and norms. New Public Law scholars have posed profound theoretical challenges to the traditional pluralist and modem Paretian-welfarist view that an ideal public policy …

The Confrontation Clause Today In Light Of Its Common Law Background, Daniel N. Shaviro

Faculty Articles

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right.., to be confronted with the witnesses against him..." The words illustrate the difference between simplicity and clarity. While eloquent and spare, they lack not only detail, but clear reference. Even if the terms "criminal prosecutions" and "accused" have - as the expression goes - plain meaning, two ambiguities almost immediately become apparent. The first is what it means to "confront" the witnesses against one. To note two highly polar positions among the many that are possible, Dean Wigmore thought "confrontation" meant …

Erisa: Nonwaivability Of Preemption, George Lee Flint Jr

Faculty Articles

Congress attempted to encourage the growth of private employee benefit plans by drafting the preemption provision in ERISA in an effort to develop the federal common law of employee benefits and discourage varied jurisdictional interpretations. States and federal courts have addressed the issue of preemption waivability with differing results. Some interpret the preemption clause as a waivable defense under a choice of law argument, while others treated preemption as a subject matter jurisdiction issue which cannot be waived.

ERISA’s express language clearly precludes state law causes of action under qualified ERISA plans. Furthermore, the legislative intent of the statute reiterates …

The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice For The 1990'S - A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

The Kenneth J. Hodson Chair of Criminal Law was established at The Judge Advocate General’s School on June 24, 1971. The chair was named after Major General Hodson, who served as The Judge Advocate General from 1967 to 1971. General Hodson retired in 1971, but immediately was recalled to active duty to serve as the Chief Judge of the Army Court of Military Review. He served in that position until 1974. General Hodson served over thirty years on active duty. During that time, he was active in the American and Federal Bar Associations, and he authored much of the military …

Administrative Law, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

The Power Of Language Beyond Words: Law As Invitation, Emily A. Hartigan

Faculty Articles

Law is an invitation to fuller life, more than a mere instrument of force, coercion, and death, which is imprinted within each person and which animates the ideas of our constitutions and statutes. Our laws should seek to reflect and be unified with God’s Law, and the process towards that end requires disclosure and trust, which, in turn, requires clarity of one’s whole person, which is achieved through prayerfulness.

Much of academia and society only recognizes the evil present in our law and society; however, where there is evil or negativity, goodness and that which is positive must have preceded …

In Partial Praise Of Dillon's Rule, Or, Can Public Choice Theory Justify Local Government Law?, Clayton P. Gillette

Faculty Articles

In this Article, I suggest that one particular doctrine of local government law that initially appears inconsistent with liberal conceptions of local autonomy may actually increase the likelihood that a given locality will supply those goods and services preferred by its residents. I argue that the doctrine at issue, Dillon's Rule, can best be understood and justified as a judicial check on local tendencies to cater to special interests at the expense of other groups within the locality. For those who consider local autonomy to be unnecessarily constrained, Dillon's Rule is anathema. If my view of the Rule is correct, …

Legal Remedies And The United Nations' À La Carte Problem, José E. Alvarez

Faculty Articles

This article reexamines recent U.S. withholdings of its assessed regular contributions to the UN, as well as the premises and assumptions underlying the theory that a UN member may legally and unilaterally withhold payments for ultra vires acts by the organization. The issue is of considerable consequence since, despite recent rhetoric, the number of members financially supporting the UN through timely payments of regular contributions number only about half the membership, while many members selectively withhold portions of their payments. These practices undermine the basic doctrine of "collective financial responsibility" and threaten the survival of international organizations. Reexamination is timely …

A Clash Of Two Cultures: Will The Tort System Survive Automobile Insurance Reform?, Richard A. Epstein

Faculty Articles

Monsanto Lecture on tort reform and insurance.

Bankruptcy Policy: Toward A Moral Justification For Financial Rehabilitation For The Consumer Debtor, Richard E. Flint

Faculty Articles

The central justification for the debtor financial relief provisions of the Bankruptcy Code is founded in a natural law theory of morality. The law reflects reason and conscience, and those fundamental principles of fairness and humanitarianism form the moral dimension of the debtor relief provisions of the Bankruptcy Code. Historically, America has recognized an objective moral dimension to the bankruptcy process, and Congress has continually enacted legislation implementing its fresh start policy, which strives to obtain goals that mirror that moral fiber.

This fiber is composed of two separate but mutually dependent strands of values, intertwined into a coherent plan …

Dutiful Justice (Book Review), Michael S. Ariens

Faculty Articles

Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditional biography of one of the most important public figures in the United States since the Civil War.

Although the author disclaims it, Honorable Justice is a defense of Holmes. Novick writes of some of Holmes’ faults, but too often Holmes’ human imperfections are defended as strengths. It appears that Novick was trying hard to defend Holmes from late twentieth century critiques. This defense of Holmes seems a misguided attempt to re(de)ify Holmes to a group of readers which will likely include a large proportion of skeptical, …

Banning The Buttons: Employer Interference With The Right To Wear Union Insignia In The Workplace, John W. Teeter Jr

Faculty Articles

The right for workers to wear union insignia without fear of retaliation in the workplace has been constricted, undermined, and jeopardized by judicial and National Labor Relations Board (“Board”) decisions. As a consequence, at least three problems arise: (1) litigation over this issue increases as the law becomes increasingly opaque; (2) workers are wrongfully denied the opportunity to proclaim their union sympathies; and (3) the Board and courts send an implicit message that the freedom to express union support is a second-class right that employers may override by offering a pretextual justification. This subordination of the right to wear union …

Military Justice For The 1990’S: A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

Noting that the American military justice system is often the subject of criticism and derision, the author explores the criticisms often leveled at the military justice system and targets a number of areas where the system seems most vulnerable, such as size and composition of the courts-martial, the role of the commander in the system and offers suggestions for reform.

Teaching Transformative Jurisprudence (Film Review), Vincent R. Johnson

Faculty Articles

The Road to Brown is a film that deals with the transformative judicial ruling of Brown v. Board of Education. Many regard this case as the most important holding ever made by a United States court. The Road to Brown offers law professors a superb vehicle for bringing to the classroom the attention to persons, sense of history, and focus on litigation strategy that a great decision demands.

The Road to Brown provides a rich socio-legal-historical perspective on the events that culminated in the 1945 Supreme Court ruling barring racial segregation in public elementary schools. The program blends together photographs, …

Contractarian Methods In Political And Legal Evaluation, Kim Lane Scheppele, Jeremy Waldron

Faculty Articles

The discussion of John Rawls's work over the last twenty years has made contractarianism a familiar term in political theory.' But although Rawls's work was rooted in the familiar social contract theories of Locke, Rousseau and Kant and although other theorists have made some use of the approach, the general discussion of the concept of contractarian argument in the modem literature has remained focused on Rawls's particular conception of it. Criticisms of Rawls's theory have been assumed to be criticisms of contractarianism in general, and the limitations in Rawls's use of the "social contract" idea have been assumed to be …

All Quiet On The Eastern Front, Richard A. Epstein

Faculty Articles

I will explore the proposition of universal first principles in the contexts of common law adjudication and constitution-making. The development of these themes takes place at several stages, all of which stress how a few core principles are sufficient to organize our understanding of both private and public law. Section I therefore gives a brief account of the central and universal principles of private law-principles as applicable to business relations in Eastern Europe as anywhere else in the world. Section II then recapitulates in brief form the basic principles of constitutionalism, which again are as applicable to Eastern Europe as …

Providing Economic Incentives In Environmental Regulation, Marshall J. Breger, Richard B. Stewart, E. Donald Elliott, David Hawkins

Faculty Articles

On April 23, 1990, Richard Stewart, E. Donald Elliott, and David Hawkins spoke before the Administrative Conference of the United States on the use of economic incentives in environmental regulation. Presented during the Congressional debate over the Clean Air Act Amendments, the speeches focus on the use of emissions trading as an alternative form of pollution control. The text of the speech has been edited.

The Substance Of Equality, Jeremy Waldron

Faculty Articles

Book review of Speaking of Equality: An Analysis of the Rhetorical Force of 'equality' in Moral and Legal Discourse, by Peter Westen, Princeton University Press, 1990.

A Hair Piece: Perspectives On The Intersection Of Race And Gender, Paulette M. Caldwell

Faculty Articles

Eliminating the behavioral consequences of certain stereotypes is a core function of antidiscrimination law. This function can never be adequately performed as long as courts and legal theorists create narrow, inflexible definitions of harm and categories of protection that fail to reflect the actual experience of discrimination. Considering the interactive relationship between racism and sexism from the experiential standpoint and knowledge base of black women can lead to the development of legal theories grounded in reality, and to the consideration by all women of the extent to which racism limits their choices as women and by black and other men …

Compounding Confusion And Hampering Diversity: Life After Finley And The Supplemental Jurisdiction Statute, Richard D. Freer

Faculty Articles

It has been a tough couple of years for supplemental jurisdiction. In recent decades, the doctrine, which earlier had been called the "child of necessity and sire of confusion," had become somewhat less confusing. The Supreme Court created a flurry of concern over the future of the doctrine with a pair of restrictive decisions in the late 1970s, but showed no further interest; the lower courts generally interpreted those holdings narrowly. With exceptions in a couple of areas, the application of supple­mental jurisdiction in the various joinder situations became relatively clear and predictable, and the doctrine played a major role …

Grasping At Burnt Straws: The Disaster Of The Supplemental Jurisdiction Statute, Thomas C. Arthur, Richard Freer

Faculty Articles

Ah, the strawman model! Where would Professors Rowe, Burbank, and Mengler be without it? At a minimum, they would have a much shorter article. If Professor Freer in fact torched the entire farm, it is because there was so much dry straw lying around after the three drafters fin­ished tilting with the strawmen they created in their response to Professor Freer's article. The drafters spend more than half of their article arguing the irrelevant points that a statute was needed after Finley, that the stat­ute was consistent with recommendations of the Federal Courts Study Committee, and that Professor Freer …

Close Enough For Government Work: What Happens When Congress Doesn't Do Its Job, Thomas C. Arthur, Richard Freer

Faculty Articles

There's the beef. The supplemental jurisdiction statute, particularly section 1367(b), is a nightmare of draftsmanship. The problems that flow from that fact are more than aesthetic. The sloppiness makes easy cases hard and sows confusion in areas where there should be, and so easily could have been, clarity. It creates that most wasteful type of litigation - fights over jurisdiction. Subject matter jurisdiction rules ought to be clear and capable of near-mechanical application whenever possible. Such pre­cision was possible in the supplemental jurisdiction, if only someone had spent as much time writing the statute as the trio has spent writing …

Images Of Mothers In Poverty Discourses, Martha Albertson Fineman

Faculty Articles

This Essay focuses on the construction of the concept of "Mother" in poverty discourses. It addresses the role of patriarchical ideology in the process whereby a characteristic typical of a group of welfare recipients has been selected and identified as constituting the cause as well as the effect of poverty. I am particularly interested in those political and professional discourses in which single Mother status is defined as one of the primary predictors of poverty. This association of characteristic with cause has fostered suggestions that an appropriate and fundamental goal of any proposed poverty program should be the eradication of …