Digital Commons Network^™

Intimacy Outside Of The Natural Family: The Limits Of Privacy, Martha Albertson Fineman

Faculty Articles

In this paper I undertake a very pragmatic and focused consideration of whether it is possible to rework existing legal concepts of privacy in a way that would be ideologically compatible with dominant social norms in order to shield single mothers from excessive state regulation and supervision. I ultimately conclude that my desire to protect the decisionmaking autonomy and the dignity of poor and/or single mothers cannot be satisfied by resort to this area of law. At the constitutional level, this is so because notions of privacy are typically articulated as rights belonging to individuals, not family entities. And …

The Implied Good Faith Filing Requirement: Sentinel Of An Evolving Bankruptcy Policy, Lawrence Ponoroff, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

Hallucinations Of Neutrality In The Oregon Peyote Case, Harry F. Tepker

Faculty Articles

No abstract provided.

The Illusive Meaning Of The Term “Product” Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

The impact of Section 402A of the Restatement (Second) of Torts had far-reaching effects. The most noticeable of these effects was that strict liability was accepted as a cause of action in almost all cases involving defective products. As a result, there was an explosion of products liability litigation, and suits involving strict liability for defective products soon outnumbered all other tort cases.

Naturally, the vast number of lawsuits caused some confusion. Courts interpreted some terms of Section 402A to include individuals and events not originally mentioned, while other terms, which at first were thought to be clear and concise, …

On The Road Of Good Intentions: Justice Brennan And The Religion Clauses, Michael S. Ariens

Faculty Articles

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect …

Re-Imagining Childhood And Reconstructing The Legal Order: The Case For Abolishing The Juvenile Court, Janet Ainsworth

Faculty Articles

Although the institution of the juvenile court developed rather recently in our legal system, it is now quite firmly established: every American state and nearly every industrialized nation has a juvenile court system in place. The juvenile court is not without its critics, however. In this Article, Professor Janet Ainsworth recommends its complete abolition. Professor Ainsworth contends that society's current view of the nature of adolescence no longer comports with the turn-of-the century view that originally informed the development of an autonomous juvenile court, thus undermining the ideological legitimacy of a separate court system for juveniles. In addition, Professor Ainsworth …

Community Institution Building: A Response To The Limits Of Litigation In Addressing The Problem Of Homelessness, Ronald Slye

Faculty Articles

This article draws upon the experiences of the Jerome N. Frank Legal Services Organization at Yale Law School to argue that, while litigation has a place in addressing both the problem of homelessness and the problems of the homeless, it must be placed within a broader context and supplemented by other, non-litigious, legal activity. Using as an example a lawsuit brought on behalf of homeless families in Connecticut, this article makes four observations which support the conclusion that litigation, used alone, is an ineffective means of addressing the problem of homelessness.

Revitalizing Public Interest Lawyering In The 1990'S: The Story Of One Effort To Address The Problem Of Homelessness, Ronald Slye, Rebecca Arbogast, Roger L. Barnett, Leslie Kim Treiger

Faculty Articles

Despite annual exhortations to graduating law students to accept the responsibilities as well as the benefits of entering the legal profession, the prognosis for public interest law in the 1990's is uncertain. There have been significant decreases in federal and private funding of public interest organizations, sweeping changes in the composition of the federal judiciary, and a decline in the matriculation of public interest lawyers due to the increasing salary gap between the private and public sector. Together these factors raise serious questions about the future effectiveness of the traditional model of the full-time public interest litigator and call for …

Why The Criminal Justice System Can't Control Crime, Gerald S. Reamey

Faculty Articles

No abstract provided.

Intracircuit Nonacquiescence And The Breakdown Of The Rule Of Law: A Response To Estreicher And Revesz, Matthew Diller, Nancy Morawetz

Faculty Articles

This Comment critiques Estreicher and Revesz' underlying assumptions about our legal system and their proposed standard for permissible nonacquiescence. We argue that their proposal upsets the balance between agencies and courts by rendering the judiciary essentially powerless to enforce congressional limitations on agency conduct for long periods of time. Part I discusses Estreicher and Revesz' central premise that circuit court precedent is so tentative and malleable that it is not entitled to authoritative force. Part II disputes their assessment of the costs and benefits of nonacquiescence, and shows that their analysis of the role of the circuit courts leads them …

Criticizing The Economic Analysis Of Law, Jeremy Waldron

Faculty Articles

Book review of Markets, Morals, and the Law by Jules L. Coleman, Cambridge University Press, 1988.

Contracts For Deed In Oklahoma: Obsolete But Not Forgotten, Drew L. Kershen

Faculty Articles

No abstract provided.

Keeping The Faith: The Problem Of Apparent Bias In Labor Representation Elections, John W. Teeter Jr

Faculty Articles

Any procedure requiring a “fair” election must honor the rights of both those who oppose and those who favor a union. The National Labor Relations Act (“Act”) is wholly neutral when it comes to that choice. Under the terms of the Act, employees have the right to form unions but also have the right to refrain from such activities. The National Labor Relations Board’s (“Board”) role in representation elections is to ascertain the employee's’ wishes concerning unionization, and not to influence that fundamental choice. The Board’s appearance of neutrality may be undermined through fraternization, the delegation of duties, and allegedly …

Time Changes: Growing Complexity In Texas Sentencing Law, John M. Schmolesky

Faculty Articles

The Seventieth Legislature made criminal sentencing guidelines more onerous, but a number of factors combined to undercut its impact. These changes made the relationships between the legislative, judicial, and administrative components of the criminal justice system become increasingly complex, often resulting in one agency undercutting the decisions of another. Because of the complex web of agencies that have a role in determining the disposition of a convicted defendant, changes in the rules of sentencing must be analyzed at several different levels to determine their true impact.

Despite the apparently more punitive thrust of the new legislation, no clear policy direction …

Religious Liberty In The Welfare State, Richard A. Epstein

Faculty Articles

To what extent can our conception of religious liberty survive or even flourish after the advent of the welfare state? This question, which I hope to address here, is in some sense inescapable. The fully developed welfare state is characterized by a high level of government action in all phases of economic and social life. Necessarily, therefore, some fraction of its constant stream of legislation will pose a challenge, if not a threat, to the autonomy of religious institutions. This stream of legislative action poses special analytical difficulties, moreover, because of the constitutional dualism between preferred freedoms and economic liberties …

Unconstitutional Conditions Obscured: A Brief Response To Professor Abrams, Richard A. Epstein

Faculty Articles

In his paper in this issue of the San Diego Law Review, Professor Howard Abrams takes me to task for my analysis of the doctrine of unconstitutional conditions as it appears in the Foreword to the Harvard Law Review 1987 Supreme Court issue. Judging from his response, it is difficult to understand why he bothered with his analysis because he seems to find so little of value in what I have written. Instead, he uses the opportunity as a platform for the development of his own inchoate views, which in common fashion stress the importance of motivational analysis in dealing …

Arbitration Of Employment Disputes Without Unions, Samuel Estreicher

Faculty Articles

This article addresses the question of the appropriate legal response to arbitration of employment disputes in nonunion settings. Part I considers the advisability of importing the aggressive pro-arbitration policies of the Steelworkers Trilogy into the nonunion context. Part II examines the status of nonunion arbitration under the at-will assumptions of existing law. Part III shifts the discussion to a possible future world of wrongful termination legislation and asks whether arbitration should be the principal adjudicative mechanism for resolving disputes under such legislation.

Second Thoughts About Summary Judgment, Samuel Issacharoff, George Loewenstein

Faculty Articles

The expansion of summary judgment is designed to control both the volume of litigation overall and its scope in any particular case. However, as we argue below, the impact of altering summary judgment rules goes beyond this hoped for screening function. Alterations of summary judgment procedures have consequences for the information balance between, and incentives operating on, both parties, and these in turn affect the entire spectrum of decisions facing litigants, from the filing of lawsuits to the choice between settling and litigating the claim through to trial. To some extent, moreover, the expansion of summary judgment is subject to …

Expressive Genericity: Trademarks As Language In The Pepsi Generation, Rochelle C. Dreyfuss

Faculty Articles

This Article attempts to develop a framework for allocating rights in words. After quickly recounting how the changing legal climate has tended to grant trademark owners ever greater control over their marks, Part I explains why these recently developed rules imperfectly measure, and therefore provide inadequate access to, the expressive dimension of trademarks. Part II takes a hard look at the connection between words and communication. It scrutinizes one example of the Court's handiwork in this area, and then draws upon the linguistic literature to show that discourse is indeed inhibited as control over words is lost. This Part suggests …

Ante-Mortem Probate: A Viable Alternative, Aloysius A. Leopold, Gerry W. Beyer

Faculty Articles

Most jurisdictions within the United States currently utilize the post-mortem model of probate. Under this theory, an individual of legal age and of sufficient mental health plans for the distribution of his bounty at death. These distribution plans are then formalized by being scribed into his last will and testament, which then awaits the death of its writer so that at the time of probate, it can be read once again to proclaim donative intent and assure that the estate is distributed in accordance with the testator’s desires.

While this theory of probate sounds proper, experience has revealed that in …

Raborn V. Davis—Paycheck In Employee’S Possession: A Limitation Of The Current Wage Exemption In Texas, Richard E. Flint

Faculty Articles

Extensions of credit generally help both the debtor and creditor. However, a result of our credit-based economy is that individuals are free to make poor economic decisions, and that they should suffer the consequences of these poor decisions. Although legal rules have had a role in ensuring that debtors are protected from overzealous creditors, commercial transactions can only exist if obligations of debtors are legally enforceable. The role of government, therefore, is to set parameters for procedures to enforce these obligations, while also setting a floor of protected or exempt assets so that debtors will not become wards of the …

The Crime Of Barratry: Criminal Responsibility For A Branch Of Professional Responsibility, Gerald S. Reamey

Faculty Articles

When lawyers thought of spurious litigation or solicitation of clients, they thought only of disciplinary rules and possible sanctions by a grievance committee. Such misconduct is not, however, merely a breach of professional etiquette or a violation of disciplinary rules. It is also a crime. Barratry, unlike most forms of professional misconduct, is criminal. The sanctions are more serious and the procedures are often less familiar than for other ethical lapses. Personal solicitation of prospective clients is the evil targeted by the barratry statute.

In Bates v. State Bar of Arizona, the Supreme Court first recognized lawyer advertising as commercial …

Trial And Appellate Criminal Procedure, John M. Schmolesky

Faculty Articles

Recent state and federal decisions significantly influenced Texas criminal procedure at both the trial and appellate levels. These decisions generally affected three main areas of the punishment stage of Texas criminal trials. First, they defined the scope of evidence admissible at the punishment stage. Second, they addressed procedural and substantive questions concerning the special punishment issue of use or exhibition of a deadly weapon. Third, they raised substantial questions about the constitutionality of the death penalty as applied by Texas courts.

Texas courts also faced numerous challenges in the aftermath of several important state and federal constitutional decisions. These decisions …

Evidence, Fifth Circuit Symposium, David A. Schlueter

Faculty Articles

This article reviews decisions by the United States Court of Appeals for the Fifth Circuit on evidence issues and concludes that if an attorney has any hopes of obtaining appellate relief on an evidentiary issue, it is essential that the issues be presented concisely and completely to the trial court. The appellate courts will not reverse an evidentiary ruling of a trial court, even if the trial court has erred. This deference to the trial court is in recognition of the hundreds of rulings on evidence that the trial court must conduct within the course of a trial. In order …

The Magic Circle: Inclusion Of Adopted Children In Testamentary Class Gifts, Victoria M. Mather

Faculty Articles

In two recent Texas appellate court decisions, the courts were faced with the problem of deciding whether a testator meant to include, or at least did not intend to exclude, adopted children in a testamentary class gift. Courts across the United States have struggled with this issue in recent years, and an increasing number are holding that gifts to children, issue, or lineal descendants do not necessarily exclude adopted children. However, in both Texas cases, the courts held that the adopted children could not take as members of the class. This result is contrary to both the modem trend of …

On The Transformation Of The Legal Profession: The Advent Of Temporary Lawyering, Vincent R. Johnson, Virginia Coyle

Faculty Articles

The structure of the legal profession and the nature of law practice have changed dramatically during the past quarter of a century. Indeed, the transformation has been so thorough that it is difficult to say with confidence which of the many developments has had the greatest impact on the culture of law practice. The growth in the number of attorneys and law firms has been exponential; women and minorities comprise increasingly larger percentages of law school graduates, practitioners, and the academic bar; law firms are taking on greater and greater numbers of associates; starting salaries in major firms now approach …

The United States Of America, Champion Of The Rule Of Law Or The New World Order?, Jeffrey F. Addicott

Faculty Articles

The New World Order was to herald in a new era in international affairs. It was to be an era of collective security sponsored and reinforced by the United Nations. In reality, however, the natural desire to enlarge the New World Order has quickly met with failure.

As the failures of the New World Order mount, the phrase loses its power. No peace movement has ever been premised on maintaining a strong and viable military, and no proponent of the New World Order can ever hope to be immune from the wishful thinking of those who demand the dismantling of …

Developing A Security Strategy For Indochina, Jeffrey F. Addicott

Faculty Articles

Serious thought must be given to the complex problem of U.S. military retrenchments in the Pacific Rim. One of the most troubling issues is the impact of significant military reductions on those developing nations in the Asian Basin that currently have no garrison of U.S. troops, but are nonetheless friendly to and necessary for American interests. Almost all of friendly Indochina is affected, with Thailand, Malaysia, and Indonesia being of particular significance.

Accordingly, the time has come for policymakers to begin to formulate a post-reduction security strategy for Indochina. Without such a strategy, the cumulative effect of an erosion of …

Proceedings Of The First Center For Law And Military Operations Symposium, 18-20 April 1990, Jeffrey F. Addicott

Faculty Articles

The First Center for Law and Military Operations Symposium was held from 18 to 20 April 1990. It was conducted by the Center for Law and Military Operations of The Judge Advocate General’s School of the United States Army. Sixty participants, representing the Army, Navy, Marine Corps, Air Force, Coast Guard, Department of Defense (DOD), and Department of State attended the symposium.

The symposium covered number of topics including operational law (OPLAW), legal considerations regarding psychological operations (PSYOP), Operation Just Cause, military changes taking place in Europe, the DOD Counternarcotics Mission, and the negotiation and conclusion of international agreements. The …

Beyond Public Choice And Public Interest: A Study Of The Legislative Process As Illustrated By Tax Legislation In The 1980s, Daniel N. Shaviro

Faculty Articles

Even more peculiar than the rapid pace of 1980s tax legislation was the wildly erratic and cyclical nature of tax policy. In this country, tax policy tends to take either of two forms. First, under what I call an "instrumentalist" approach, tax law ostensibly serves social and economic policy goals (for example, increasing productivity, home ownership, or competitiveness) by providing preferential treatment for selected types of income. This approach is characterized not so much by a fixed agenda as by a willingness to use the tax system to pursue a broad array of goals. Second, the approach that in the …