Digital Commons Network^™

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 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 …

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 …

A Framework For Analyzing Legal Policy Towards Proxy Contests, Lucian Arye Bebchuk, Marcel Kahan

Faculty Articles

In this Article, the authors develop a framework for analyzing the desirable legal policy towards proxy contests and apply this framework to assess the rules governing the allocation of costs in proxy contests. The authors' normative standard is the maximization of social wealth. Proxy rules affect social wealth in three ways: they influence who will engage in proxy contests, they have an impact on who wins proxy contests, and they affect ex ante managerial behavior. Taking these effects into account, the authors examine how the three main dimensions of choice in the design of proxy rules--success contingency, neutrality, and the …

Specialized Adjudication, Rochelle C. Dreyfuss

Faculty Articles

It has been suggested that Congress should alleviate the federal court docket crisis by establishing a series of specialized courts with limited jurisdiction over particular areas. Specialization courts, in theory, enable the judiciary to meet the US' adjudication needs effectively and may even produce benefits of its own. However, the specialized court proposal is not without its problems. Since the jurisdiction of the court must be narrow and defined with precision, the judges would get a parochial view of the legal landscape that could lead to distorted decision making. Problems can be minimized through the choice of specialty fields and …

Madison's Nightmare, Richard B. Stewart

Faculty Articles

Madison identified the problem of factional domination in territorially limited government. The growth of the national regulatory welfare state, however, has spawned a new form of factional domination. By an irony of inversion, Madison's centralizing solution to the problem of faction has produced Madison's Nightmare: a faction-ridden maze of fragmented and often irresponsible micropolitics within the government. The post-New Deal constitutional jurisprudence of majoritarian politics has helped produce this result, because the demands for national regulatory and spending programs have outstripped the capacity of the national legislative process to make decisions that are accountable and politically responsive to the general …

The Independence Of Judges: The Uses And Limitations Of Public Choice Theory, Richard A. Epstein

Faculty Articles

How do judges behave in deciding cases? The question seems to be peculiarly immune to the ordinary techniques of social science analysis. While public choice theory in particular has achieved important breakthroughs in understanding legislative behavior, it has not achieved similar successes in dealing with judicial behavior. Yet, in an odd sense, its inability to provide us with strong predictions as to how judges behave should be regarded as a backhand confirmation of the theory, and not as its refutation. Given the set of institutional constraints under which judges routinely labor, the basic assumption of public choice theory-that self interest …

The Paradox Of Civil Rights, Richard A. Epstein

Faculty Articles

There is a curious duality in the status of civil rights in the United States: massive political support for antidiscrimination legislation but little economic evidence to show how or why it does any good.

The Uneasy Case Against Intracircuit Nonacquiescence: A Reply, Samuel Estreicher, Richard L. Revesz

Faculty Articles

In their Comment on our article, two of the lead counsel representing the plaintiff class in the pending Stieberger v. Sullivan litigation against the Social Security Administration (SSA) articulate the view that intracircuit nonacquiescence is per se unlawful and may be routinely subject to court injunctions regardless of the reasonableness of the agency's litigation position or the extent of disagreement among the courts of appeals over the merits of its substantive policy. The commentators' argument rests on two premises that are fundamentally inconsistent with central features of our Federal legal system. Their conception of the regional courts of appeals as …

Reconsidering Efficient Tort Rules For Personal Injury: The Case Of Single Activity Accidents, Jennifer H. Arlen

Faculty Articles

Despite the expenditure of considerable effort, scholars have been unable to develop tort rules to govern serious physical injuries to strangers that satisfy the Pareto criterion without resorting to theoretical devices that appear unrealistic even in the rarefied atmosphere of economic models. An analysis of single activity accidents demonstrates that expanding the economic model of accident law to reflect the reciprocal nature of the risks that the participants in such activities impose on each other enables the design of tort rules for the resulting physical injuries that satisfy the Pareto criterion without resort to unrealistic theoretical devices. Because most tortious …

Public Policy Limits On Tax Benefits: Bob Jones Revisited, Harvey P. Dale

Faculty Articles

In Bob Jones University v. United States, the Supreme Court denied charitable tax-exempt status to schools which discriminated against blacks. The majority opinion, by Chief Justice Burger, uses a simple syllogism. As its first premise, it interprets I.R.C § 501(c)(3) as resting on "certain common law standards of charity - namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy." As its second premise, it finds that "racial discrimination in education violates a most fundamental national public policy .... " From these premises, it concludes that the institutions in question …

Post-Modern Art And The Death Of Obscenity Law, Amy M. Adler

Faculty Articles

In 1973, in Miller v. California,' the Supreme Court wrested from the "tortured history" of its obscenity doctrine the modern constitutional definition of "obscenity." Miller set forth a new test to distinguish sexually explicit art from obscenity, protecting such art only if it demonstrates "serious . . . artistic . . . value."" Yet Miller was drafted at a radical turning point in the history of art, and the new art that has arisen since Miller has rendered standards such as "serious artistic value" obsolete. This new art-Post-Modern art'-rebels against the demand that a work of art be 'serious, or …

In Praise Of Divided Government, Richard A. Epstein

Faculty Articles

When I think of the important periods of unified government, I think of the New Deal and of the Great Society. In my view these are fitting indictments of the principle of unified government because the legislation that they enacted has been enormously destructive and detrimental to human welfare. That is a political judgment, and an outspoken judgment, even if made by a law professor---one, I might add, whose views are likely to disqualify him permanently from any responsible position of political power in Washington. But there is something to be said for having some of us reside permanently outside …

The Supreme Court's Bifurcated Interpretation Of The Confrontation Clause, 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 ..." Under a functional view, the clause prevents prosecutorial misconduct and increases the reliability of guilty verdicts by requiring that certain evidence be subject to in-court challenge before it can serve as the basis for a conviction. Under a formalistic view, the clause merely creates specific rules of the game for criminal trials - rules that are constitutionally mandated without regard to any policy. Many people prefer a functional view; others, a formalistic …

Specialized Courts And The Administrative Lawmaking System, Richard L. Revesz

Faculty Articles

The central purpose of this Article is to analyze the desirability of vesting the review of administrative action in specialized courts, and to assess the relative merits of different types of specialized courts. Part I presents the central arguments raised in favor of specialized courts. Part II discusses the varieties of specialized courts (courts currently in place, courts that once existed and were subsequently abolished, and various proposals), and sets forth a method by which to categorize such courts. In general, the academic literature has not paid proper attention to the different structures of specialized courts. As a result of …

How To Govern A City On A Hill: The Early Puritan Contribution To American Constitutionalism, John Witte Jr.

Faculty Articles

This Article explores briefly the constitutional ideas and institutions of seventeenth-century Puritan New England. It analyzes the constitutional ideas that the Puritans derived from their theological doctrines of covenant, church and state, and sin, and it examines the forms and functions of political and ecclesiastical government they devised in implementation of these ideas.

Challenging Law, Establishing Differences: The Future Of Feminist Legal Scholarship, Martha Albertson Fineman

Faculty Articles

I begin with my version of the ideally antagonistic interaction of feminist theory with the law. I locate my discussion between the extremes of grand theory and unique experience. I consider the central, pressing task of feminist theory to be challenging existing law and legal doctrines through the articulation and establishment of a theory of difference. In this essay I divide my discussion of the theory of difference into two sections. The first section concerns the theoretical and political necessity of establishing the differences between men and women. Articulation of the extent of this manifestation of difference illustrates that the …

Reconsidering The Application Of Laches In Environmental Litigation, William Murray Tabb

Faculty Articles

No abstract provided.

Justice Brennan, Judge Bork And A Jurisprudence Of Original Values, Harry F. Tepker

Faculty Articles

No abstract provided.

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 …

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 …

Inadvisable Advice: Limits On Employers' Counseling Of Employees With Regard To Unfair Labor Practice Proceedings, John W. Teeter Jr

Faculty Articles

The National Labor Relations Board frequently interviews or subpoenas employees to help determine whether an employer has committed an unfair labor practice. Many employers, however, have advised their employees that they may refuse to cooperate with the Board's efforts. Professor Teeter argues that such advice has an inherent tendency to coerce employees and to frustrate the Board's vindication of their statutory rights. After reviewing the inconsistent approaches tribunals have taken to this problem, the author recommends that employers be prohibited from counseling employees regarding their participation in the Board's proceedings. Professor Teeter concludes that the Board itself should be the …

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 …

Navigating The Shoals Of ‘Use’ Immunity And Secret International Enterprises In Major Congressional Investigations: Lessons Of The Iran-Contra Affair, George Van Cleve, Charles Tiefer

Faculty Articles

In its Iran-Contra investigation, Congress faced legal challenges which evolved logically from the two-century long history of Congressional investigations, and yet at the same time were unmatched in their significance. One challenge concerned "use" immunity, and its employment when high advisers to the President faced parallel Congressional and criminal proceedings. A second concerned the investigation of a secret international "Enterprise," which, like similar enterprises, was established overseas to carry on international operations without public accountability, and was protected by multiple layers of secrecy sanctioned by law. This article addresses how history brought Congress to those challenges, and how Congress met …

The Deforestation Of The Brazilian Amazon: Law, Politics, And International Cooperation, Henry Mcgee, Kurt Zimmerman

Faculty Articles

This article discusses the Brazilian Amazon rain forest and its remarkable biological diversity. Many scientists believe the world's largest jungle serves as a regional and perhaps even "global thermostat." It is therefore essential that vigorous efforts be directed toward its preservation. This article will examine Brazilian attitudes toward its preservation, and possible solutions to the forest destruction with reference to domestic and international law.

The First Amendment In An Age Of Paratroopers, David Skover, Ronald Collins

Faculty Articles

As the lead piece in a Colloquy entitled The First Amendment and the Paratroopers' Paradox, this article argues that today's free speech theory is largely grounded in 18th Century fears of government's tyrannical censorship. This theory is ill-equipped to deal with a distinct tyranny in 21st Century America, a tyranny playing upon the public's insatiable appetite for amusement. Those who venture to develop free speech principles to suit a new cultural environment are the First Amendment paratroopers of our time, the ones who realize that we cannot retain our old constitutional prerogatives in a transformed world. The Paratroopers' Paradox: To …

Bank Control Of Title Insurance: Perils To The Public That Bank Regulators Have Ignored, Joyce Palomar

Faculty Articles

No abstract provided.

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

Faculty Articles

No abstract provided.

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 …

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 …