Digital Commons Network^™

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.

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 …

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 …

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 …

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 …

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 …

Who Puts The Public In The Public Good?: A Comment On Cass, Clayton P. Gillette

Faculty Articles

With characteristic comprehensiveness, Professor Ronald Cass has provided us with a compendium of mechanisms for privatization and a justification of their use. Eschewing the easy lure of binary choices, he suggests that the decision to employ public or private avenues to accomplish optimal allocation of public goods and services must ultimately rest on a variety of factors. Captured within the rubric of comparative advantage, these factors demand that we assign any particular activity that affects the public interest to the sector that best navigates between the Scylla of rent-seeking and the Charybdis of agency costs. I have little disagreement with …

The Paradox Of Procedural Reform, Oscar G. Chase

Faculty Articles

This symposium properly celebrates the fiftieth anniversary of the Federal Rules of Civil Procedure. Let me add a cheer for another procedural anniversary: 1988 is the twenty-fifth year in the life of the New York Civil Practice Law and Rules (the "CPLR"), which became effective on September 1, 1963. The CPLR is the principal statute regulating dispute adjudication in New York State. It prescribes civil procedure in the Supreme Court-the trial court of general jurisdiction-and in the County Courts. It also governs practice in the appellate courts and, to a limited extent, in the inferior trial courts. In this Article, …

Reflections On Section 402a Of The Restatement (Second) Of Torts: A Mirror Crack’D, Charles E. Cantú

Faculty Articles

Section 402A of the Restatement (Second) of Torts forever changed the means by which an individual would be held liable for placing defective products into the stream of commerce. Strict liability, which had previously been restricted to cases involving dangerous activities and wild animals, became a new cause of action in almost all product cases. As a result, this section of the Restatement has been a catalyst to a multitude of litigation. More causes of action have been brought alleging strict liability for injuries caused by a defective product than in any other area of tort law.

Now that almost …

Modern Republicanism—Or The Flight From Substance, Richard A. Epstein

Faculty Articles

In their separate contributions to this issue of the Yale Law Journal, Professor Frank Michelman and my colleague Professor Cass Sunstein sketch out their respective modern visions of republicanism in both constitutional law and political theory. In this brief comment it is impossible to address the many issues that they raise, or to follow each author down the many byways that he chooses to travel. But it is both possible and important to isolate several themes, recurrent in both pieces, that seem central to their conception of modern republicanism. These themes, when fully understood, point out the serious weaknesses of …

Aids, Testing And The Workplace, Richard A. Epstein

Faculty Articles

AIDS. The stories that have been written about the virus and the disease, death, and despair that follow in its wake are so numerous that it seems almost fruitless to try to say anything about the subject which has not been said better before. Nonetheless, despite the obvious outpouring of information and analysis about AIDS, it is difficult to find a powerful consensus about the proper response to any of the manifold social problems it creates. The Presidential Commission to study AIDS began its life torn by bitterness and dissension. Once reconstituted, it issued a report calling for a massive …

Plebiscites, Participation, And Collective Action In Local Government Law, Clayton P. Gillette

Faculty Articles

The conventional response has been to look to relatively small units of government, localities, to serve as the forums for public participation. Even at the local level, however, direct participation in the political process seems anomalous. The town meeting model of government has little application to contemporary municipalities, and even the Jeffersonian appeal to tum the counties into wards seems inappropriate for the wide variety of local problems that require regional or interjurisdictional solutions. Advocates of increased mass participation, therefore, generally recommend mechanisms more passive than direct entry into the public forum by large numbers of citizens. Most frequently, commentators …

Born As Second Class Citizens In The U.S.A.: Children Of Undocumented Parents, Bill Piatt

Faculty Articles

Courts must guarantee that native-born citizens of undocumented parents are not second class citizens. Historically, courts intervened to prevent administrative officials from making the educational or economic circumstances of citizen children more difficult because of their parents' undocumented status, as in Plyer v. Doe. However, courts generally show greater reluctance in preventing officials from making the circumstances of children of undocumented parents more difficult when their parents are removed from this country by deportation.

As a result of the holdings in Kleindienst, Fiallo, and Wang, it is not likely that courts will scrutinize the congressional policy choice of allowing imposition …

Warrantless Arrest Jurisdiction In Texas: An Analysis And A Proposal, Gerald S. Reamey, J. Daniel Harkins

Faculty Articles

Within the State of Texas, there exist a great number of “peace officers” who are granted a wide range of power and authority. This includes the power to make warrantless arrests and searches pursuant to those arrests. Significant ambiguity exists regarding a peace officer’s jurisdiction. The confusion is largely due to imprecise statutory language and varying judicial interpretations.

Article 998 of Texas Revised Civil Statutes, for example, bestowed on city police officers the same powers, authority, and jurisdiction as city marshals. The statute, though, neglected to define the extent of that jurisdiction, or even what “jurisdiction” meant in that context. …

Suicidal Rights, Michael S. Ariens

Faculty Articles

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual.

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual …

Products Liability: An Argument For Product Line Liability In Texas, Charles E. Cantú, David S. Goldberg

Faculty Articles

In today’s fast-paced business world, buyouts, takeovers, mergers, and other acquisitions are common occurrences. As a consequence of this corporate turnover, the consumer plaintiff injured while using a defective product may find the search for the proper defendant is futile, simply because the product is now marketed by a different legal entity. Generally, the consumer has no recourse against the manufacturer of the particular product which caused the injury if that manufacturer has since dissolved.

This apparent unfairness, coupled with an increase in litigation of this nature over the last decade, has led to the judicial recognition of an exception …

Criminal Law And Procedure, David A. Schlueter

Faculty Articles

The Fifth Circuit Court of Appeals annually decides , or in some other way disposes of, several hundred cases which might be considered to fall within the topic of criminal law and procedure. Several conclusions can be drawn from the cases decided by the Fifth Circuit Court of Appeals during this survey period.

First, the court continues to adhere to a posture which reflects trust in the trial and pretrial process. That is, like most appellate courts, it views its role not as simply another forum for correcting all of the mistakes that have occurred in either the pretrial or …

Investigative Detentions For Purposes Of Fingerprinting, David A. Schlueter

Faculty Articles

This article focuses on constitutional issues associated with fingerprinting suspects in investigative detention. Following a series of barracks larcenies, Naval Investigative Service (NIS) investigators fingerprinted approximately 100 servicemembers. All those ordered to report to the NIS office for fingerprinting had been present in the unit at the time of the offenses, and among those was the accused, who was later linked to the crime through his fingerprints. Before the accused reported to the NIS office there was no probable cause or reasonable suspicion to believe that he was in any way involved in the crimes. Were the fingerprints admissible?

United …

Liability Of Parents For Conduct Of Their Child Under Section 33.01 Of The Texas Family Code: Defining The Requisite Standards Of ‘Culpability’, L. Wayne Scott

Faculty Articles

Section 33.01 of the Texas Family Code uses archaic terms and needs to be updated to eliminate confusion. This section provides an expansive statutory avenue for recovering from the parent damages previously unavailable at common law for a child's acts. However, the extent of parental liability under both of the available statutory provisions—negligence and strict liability—is disputable. While section 33.01 currently uses the terms "willful" and "malicious," these terms should be excluded in favor of "intentional" and "grossly negligent conduct."

In an age when tort liability is determined more from an insurance theory than a fault theory, section 33.01 of …

Privacy, Charles E. Cantú

Faculty Articles

No abstract provided.