Digital Commons Network^™

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 …

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 …

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 …

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, …

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 …

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 …

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 …

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, …

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.

Administrative Law, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

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 …

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, …

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 …

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.

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 …