Digital Commons Network^™

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 …

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 …

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 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 …

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.

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.

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. …

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 …

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.

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

Faculty Articles

No abstract provided.

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 …

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. …

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 …

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.

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 …

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.