Digital Commons Network^™

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 Declaration Of The Rights Of Man And Of Citizens Of 1789, The Reign Of Terror, And The Revolutionary Tribunal Of Paris, Vincent R. Johnson

Faculty Articles

Recently, Americans have been engaged in an effort to properly commemorate the bicentennial of the United States Constitution and Bill of Rights. If one is serious about that endeavor, it may be profitable to focus on the other bicentennial being celebrated this year in France. The early days of the French and American republics were intertwined, and it would be erroneous to think that the developments which then took place in the two countries can now fully be understood in isolation.

A number of legal aspects of the French Revolution are especially relevant to the American experience, therefore worth consideration. …

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 Status Of The Diplomatic Bag: A Proposed United States Position, Jeffrey F. Addicott

Faculty Articles

The protections afforded diplomats, diplomatic missions, and diplomatic bags have been misused to sponsor or commit various criminal acts. This strikes at the heart of traditional concepts of international diplomatic relations. Use of the diplomatic bag to import and export prohibited or illegal items is particularly concerning, and the most disconcerting abuses are those that use the diplomatic bag to facilitate acts of terrorism.

All malum in se acts that abuse this diplomatic shield are objectionable. As such, it is necessary to examine the current legal status of the diplomatic bag and recent international efforts to re-examine that status. Conflicts …

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 …

Attorney As Interpreter: A Return To Babble, Bill Piatt

Faculty Articles

Attorneys should not represent their clients and simultaneously act as interpreters. The harm far outweighs the benefit when an attorney acts as an interpreter for a client in litigation. In 1970, the Second Circuit Court of Appeals in Negron v. New York determined that the Sixth Amendment's confrontation clause requires that non-English speaking defendants be informed of their right to simultaneous interpretation of proceedings at the government's expense, however the use of an interpreter is still at the trial court's discretion.

Courts will ordinarily not appoint an interpreter in the absence of a request to do so, but the failure …

Moratorium On Maltzman: An Appeal To Reason, Mark B. Sobell, Linda C. Sobell

Faculty Articles

Maltzman's comment on Cook (1985), which appears elsewhere in this issue, is an unveiled attempt to resurrect the same allegations about our research that he made 7 years ago. None of the allegations are new! Over the past 7 years, those allegations have been the topic of 5 separate inquiries, in each of which we were vindicated. In this response, we review the multiple inquiries and we show how Maltzman continues to (1) cite our work out of context, (2) make false assumptions about the inquiries and our procedures and (3) disregard evidence contradicting his assertions. He relies on data …

Nonacquiescence By Federal Administrative Agencies, Samuel Estreicher, Richard L. Revesz

Faculty Articles

The status of agency nonacquiescence in our legal system remains uncertain. Despite considerable writings on the subject, there has been no systematic evaluation of the practice's costs and benefits. Neither has there been a serious proposal for reducing, in a manner consistent with the respective institutional responsibilities of an agency and its reviewing court, the debilitating tensions between these two institutions that nonacquiescence engenders. Our study principally addresses these issues. Section I is primarily definitional. First, it establishes that the Supreme Court's refusal to apply nonmutual collateral estoppel against the federal government, in United States v. Mendoza, does not, by …

Sharing Damages Among Multiple Tortfeasors, Lewis A. Kornhauser, Richard L. Revesz

Faculty Articles

In this Article, we show that many different classes of rules of apportionment are being applied by common law courts and advocated by commentators. The question of which rules to apply in particular situations is fraught with confusion. This Article's conclusion that several common law rules of apportionment are not efficient has more than merely descriptive significance. First, in the absence of overriding goals, the legal system should favor efficient rules; while efficiency might not be the only relevant goal, it clearly is a cognizable one. Thus, the efficiency properties of joint and several liability should be considered in evaluating …

An Economic Perspective On Stare Decisis, Lewis A. Kornhauser

Faculty Articles

In this essay, I propose to take legal reasoning seriously. I focus on a limited aspect of the practice of precedent, often called stare decisis. In section II, I frame the problem in two respects. First, I sketch the substantive contours of a practice that, paradoxically, demands that a court adhere to a prior decision it believes wrong. Second, I suggest that justifications for stare decisis may vary with the institutional framework. Section III explicates the idea of a "wrongly decided" case. In section IV, I survey, from an economic perspective, jurisprudential justifications for the practice. Each of the final …

Fairness Opinions: How Fair Are They And What Can Be Done About It?, Lucian Arye Bebchuk, Marcel Kahan

Faculty Articles

Fairness opinions are a regular feature of every major corporate transaction. We analyze the conflict of interest problems that afflict fairness opinions and the extent to which courts should give weight to such opinions.

Unconstitutional Conditions And Bargaining Breakdown, Richard A. Epstein

Faculty Articles

In this paper, I should like to consider again the doctrine of unconstitutional conditions, which I recently examined at far greater length in my Foreword to the Harvard Law Review's Supreme Court issue. This article should not be regarded as a simple summary of material that has been presented at far greater length elsewhere, for with summary comes clarification, extension, reconsideration, qualification, and defense. My ambition, therefore, is to move the analysis further in two directions, one theoretical and one practical. My first goal is to show how the doctrine of unconstitutional conditions can operate as an effective barrier against …

Particular Values And Critical Morality, Jeremy Waldron

Faculty Articles

In this paper I consider and criticize the following position: a community is entitled to uphold and enforce its own distinctive mores, norms, and standards through the agency of the law, even though this enforcement may seem undesirable from the wider point of view of liberal morality or moral philosophy. According to this view, which is often labeled "communitarianism," a community is entitled to do this for the sake of its own moral and cultural particularity, and in order to preserve its unique identity, its boundaries and its heritage.

Law As Microaggression, Peggy C. Davis

Faculty Articles

Drawing on the work of psychiatrist Chester Pierce, Professor Davis defines the concept of microaggression and analyzes the effects of microaggressions in legal settings.

Taking L.A. Law More Seriously, Stephen Gillers

Faculty Articles

The name tells the story. L.A. Law. One part "L.A.," one part "Law." And that is its strength and its risk. If it were only "L.A.," it would be flash without substance (a West Coast Dallas), probably gone by now. If it were only "Law," it would be something else entirely, a panel debate about the Constitution, or Scott on Trusts, or The Yale Law Journal. What it would not be is on the cusp of a fourth year of weekly broadcast. What it would not be, what it has accomplished after a shaky start, is the closest a commercial …

Judicial Adjuncts Revisited: The Proliferation Of Ad Hoc Procedure, Linda J. Silberman

Faculty Articles

This birthday celebration of the Federal Rules is a time to marvel at the enduring character of the 1938 Federal Rules of Civil Procedure. Given the dramatic changes that have taken place in litigation over these decades, it is no surprise that the proponents of the philosophy of uniform and trans-substantive rules believe that time has proved their case. I want to suggest, however, as indeed others already have, that trans-substantive rulemaking in fact has been eroded and replaced by ad hoc versions of specialized rules. One clear example of such ad hoc proceduralism comes via the increased number of …

Race And The Police Power: 1890 To 1937, Richard A. Epstein

Faculty Articles

This political market was not kind to the blacks, either in the south, or nationwide. The systematic exclusion of blacks from the electorate that shifted the voting population in favor of whites has been well documented. Within that white population, racists and bigots could, and did, outvote more moderate whites who were willing to do business with blacks. Within a market, however, that same majority could not bind a minority. Yet in the political setting, the majority can bind the minority by passing laws that require segregation, discrimination, unequal taxes and biased enforcement of the laws. The South of Jim …

A Revisionist Theory Of Abstention, Barry Friedman

Faculty Articles

Acknowledging that in some form the principle of abstention probably is here to stay, this article offers a revisionist theory of abstention. The key to this revisionist theory is recognizing that the Supreme Court's decisions expanding the scope of federal jurisdiction and its decisions requiring abstention from the exercise of federal jurisdiction employ very different premises regarding the adequacy of state courts to protect federal rights, and that these premises must be reconciled if abstention ever is. to make any sense. The competing premises can be reconciled because in some cases falling within federal jurisdiction an initial federal trial forum …

Sexual Harassment Cases And The Law Of Evidence: A Proposed Rule, Catherine O'Neill

Faculty Articles

Federal Rule of Evidence 412 eliminates from the jury's consideration during a criminal rape trial evidence of the victim's past sexual experiences in all but a few narrowly drawn circumstances. In enacting Rule 412, Congress' primary purpose was to spare victims of rape the degrading and unwarranted intrusions into intimate details of their private lives that had formerly been common practice in the federal courts. Part I of this comment discusses the background, structure and rationale of Federal Rule of Evidence 412. Part II argues that the justifications for the enactment of Rule 412 in the context of rape also …

Evidence, David A. Schlueter

Faculty Articles

From June 1987 to May 1988, the Fifth Circuit continued its reputation for careful and prudent analysis of difficult evidentiary issues.

In United States v. Torres-Flores, the court adopted a three part test for determining the admission of a mugshot photograph into evidence from the First and Second Circuits. First, the government must have a demonstrable need to introduce the photographs; second, the photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and third, the manner of introduction at trial must be such that it does not draw particular attention to …

Erisa: The Arbitrary And Capricious Rule Under Siege, George Lee Flint Jr

Faculty Articles

While ERISA sets forth an explicit standard that the plan administrator’s actions must meet those of a prudent man acting in like circumstances, courts have applied the arbitrary and capricious standard of review to administrator decisions. Courts should apply the arbitrary and capricious standard only when dealing with disinterested plan administrators acting properly under ERISA. The arbitrary and capricious rule was applied to post-ERISA decisions as a continuation of the pre-ERISA precedent, which established the rule through the continued development of common law from union negotiated employee benefit plans decided under the Labor Management Relations Act. Unfortunately, this continuation of …

Law-Givers, Story-Tellers, And Dubin’S Legal Heroes: The Emerging Dichotomy In Legal Ethics (Video Review), Vincent R. Johnson

Faculty Articles

Two camps have begun to emerge from the rich ferment in legal ethics teaching and scholarship over the last twenty years. The first group, whose members might be termed “law-givers,” consists of those who view legal ethics as chiefly concerned with the identification, transmission, and enforcement of uniform standards governing the conduct of lawyers. The second group—considerably smaller, but increasingly well-defined—might be called the “story-tellers.” The story-tellers place a higher value on persons and context than on principles and procedures, and on the cultivation of a deeper, less mechanical sense of professionalism than detailed rules can provide.

Larry Dubin’s most …

Current Theories On Expert And Novice Thinking: A Full Faculty Considers The Implications For Legal Education, John B. Mitchell

Faculty Articles

The author makes practical suggestions on how to improve law school pedagogy based upon schema and expert/novice theory.

Testimonial Consistency: The Hobgoblin Of The Federal False Declaration Statute, Sidney Delong

Faculty Articles

This article focuses on the inconsistent statement provision of the Federal False Declaration Statute. Part I of this article identifies certain anomalous aspects of perjury that make it particularly difficult to control by threats of punishment. Perjury's resemblance to an innocent mistake creates a risk that criminal sanctions will be misapplied. These sanctions may have counterproductive effects, at times inducing people to commit perjury and at others inhibiting people from correcting inaccurate testimony that they have previously given. Part II demonstrates the way in which the conflict between the goals of deterrence and mitigation is manifested in the federal perjury …

The Senator And The Constitution: An Interview With Orrin G. Hatch, David Skover, Ronald Collins

Faculty Articles

Modern constitutional scholarship tends to focus exclusively on the role of the judiciary in the development of constitutional law. Recognizing that this "court-positivist" outlook leaves substantial gaps in constitutional literature, the authors turn their scholarly attention to legislative and executive contributions to the field. The subject of their inquiry is U.S. Senator Orrin G. Hatch, who has chaired the Constitutional Subcommittee of the Senate Judiciary Committee, and who is one of the Senate's most recognized constitutional commentators. The authors interviewed Senator Hatch about his positions on various issues in constitutional law and theory, and annotated the interview extensively to analyze …

The Efficiency Of A Disgorgement As A Remedy For Breach Of Contract, Sidney Delong

Faculty Articles

Economic analysis suggests that to give a contract promise a general remedy that would require a breaching promisor to disgorge any benefit of breach would hinder the efficient post-contractual reallocation of performance resources. This article explores certain situations in which disgorgement appears to be an efficient remedy for breach of contract, including cases in which the breaching party refuses to pay contract damages at the time of breach. A rule permitting promisees to recover as "prejudgment interest" the breacher's benefit from withholding payment of damages would, in theory, be efficient in allocating the risk of the breacher's credit worthiness to …

Liberating Progress And The Free Market From The Specter Of Tort Liability (Book Review), Vincent R. Johnson

Faculty Articles

That all is not well with tort law cannot seriously be doubted. In Liability: The Legal Revolution and Its Consequences, Peter Huber attempts to chronicle the changes in tort doctrine over the past thirty or so years that have brought tort law to its present crisis, and to prescribe sweeping remedial actions capable of defining a more intelligent course of accident compensation. Drastic measures are necessary, Huber argues, because of the magnitude of the emergency.

Huber’s critique of modern tort law is always provocative and often perceptive and enlightening. The book identifies many jurisprudential trouble-spots which cry out for reform, …

Just Compensation And The Condemnation Of Future Interests: Empirical Evidence Of The Failure Of Fair Market Value, Laura H. Burney

Faculty Articles

Just compensation for future interests should be directly responsive to the Fifth Amendment by directly addressing its dictate rather than detouring through objective standards which stress valuation rather than fairness. It is generally inappropriate to strictly adhere to any one predetermined standard in compensating owners whose property has been taken. The reasons behind the rules that govern the compensation awarded to an owner whose property has been taken have not vanished. However, these rules are frequently forsaken. If the United States Supreme Court is taken at its word, the normative basis for providing just compensation in all takings cases should …