Digital Commons Network^™

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, …

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 …

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 …

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 …

Nonmajority Rules And The Supreme Court, Richard L. Revesz, Pamela S. Karlan

Faculty Articles

This Article examines disputes over two important internal procedures: the "Rule of Four," which governs the Court's selection for plenary review of cases on its discretionary docket; and the "hold" rule, or "Rule of Three," which postpones decisions on petitions for certiorari or jurisdictional statements pending disposition of a case already given plenary review. While the existence of the Rule of Four has been known publicly at least since 1925 and the Justices have frequently debated its scope, the hold rule was not explicitly discussed by the Court until the 1985 Term, and it was not until the 1986 Term …

Law, Science, And History: Reflections Upon In The Best Interests Of The Child, Peggy C. Davis

Faculty Articles

"GoldsteinFreudandSolnit" is a common term in the parlance of lawyers concerned with child custody and parental rights. It evokes a familiar set of beliefs about child development and child placement decisionmaking. The term is regularly intoned in family proceedings as authority for the view that assuring continuity of care should be the virtually exclusive criterion for child placement determinations. It is invoked to urge a process of identifying the adult with whom a child is primarily bonded - the child's "psychological parent" - and protecting the permanence and autonomy of the psychological parent-child relationship. Goldstein, Freud, and Solnit have promoted …

Controlling Environmental Risks Through Economic Incentives, Richard B. Stewart

Faculty Articles

Our current environmental regulatory programs rely almost entirely on legal rules and orders to control pollution, toxic wastes, chemical hazards, and other harmful byproducts of industrialization. A detailed, elaborate and ever-growing set of federal regulations govern the air and water pollution released from hundreds of thousands of industrial sources and millions of automobiles, the hazardous wastes resulting from over a million generators, and the risks posed by thousands of pesticides and other chemical products. The inevitable drawbacks of this command and control regulatory strategy are increasingly apparent: excessive bureaucratic centralization, rigidity, cost, litigation and delay. The only apparent cure for …

The Classical Legal Tradition, Richard A. Epstein

Faculty Articles

In this brief paper I want to address the influence that the classical legal tradition has had upon the development of public law in general, and modem American constitutional law in particular. In so doing, I shall concern myself with this question as it relates to the protection of private property and economic liberties. In some sense it might seem improbable to chart a course from the early Roman and classical writers to the present day. But I do think that the journey can be made, and that it discloses some interesting, if unanticipated insights, along the way.

A Tale Of Two Habeas, Barry Friedman

Faculty Articles

This Article sets out the rationale for the expansion of the scope of the writ that the Brown Court neglected to provide, thereby permitting an untangling of confused habeas doctrine and focusing debate on the pertinent questions concerning federal habeas review. The Article's thesis is that the Court expanded the scope of the writ of habeas corpus in Brown because the Court recognized that it no longer could shoulder the burden on direct review of scrutinizing constitutional claims arising in state criminal proceedings. Accordingly, the federal habeas courts were to act as surrogates for the United States Supreme Court through …

Covenants And Constitutions, Richard A. Epstein

Faculty Articles

Covenants and constitutions: strange bedfellows, but more than alliteration unites them. In this brief paper I shall explore the relationship between them. In order to orient the discussion, my use of the term "covenants" includes all forms of servitudes, easements, and restrictions that one person can place on another's lands. "Constitutions" are the documents that identify and entrench the fundamental law of a state or nation, on matters of both structure and individual rights.

Workable Antitrust Law: The Statutory Approach To Antitrust, Thomas C. Arthur

Faculty Articles

This Article will demonstrate the superiority of the statutory approach for producing more stable and consistent antitrust law. Part I details the development of the constitutional approach to antitrust, demonstrating how the rise of the pragmatic and instrumentalist view of law led to the displacement of the original statutory approach to antitrust. Part II illustrates that the constitutional approach fundamentally cannot produce workable antitrust law. It summarizes both the doctrinal disarray that continues to plague each major area of antitrust law and the irreconcilable policy prescriptions of the contending antitrust "schools." Part III presents an alternative, statutory approach to antitrust …

Tacit Exclusion: Defining Code Terms Using Extraneous Referents, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

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 …

Toward Domestic Recognition Of A Human Right To Language, Bill Piatt

Faculty Articles

There is no clearly defined “right to language” in the United States. Yet, there do exist sources of such a right. For example, a constitutionally protected right to express oneself or receive communications in a language other than English is supported by a number of federal court decisions. Further, there may be a first amendment right to receive broadcast programming in languages other than English, and some federal statutes even provide a guarantee of the exercise of language rights in a number of public and civic contexts.

In spite of these sources for a right to language, it is an …

Privacy, Charles E. Cantú

Faculty Articles

No abstract provided.

Solicitation Of Law Firm Clients By Departing Partners And Associates: Tort, Fiduciary, And Disciplinary Liability, Vincent R. Johnson

Faculty Articles

May a departing attorney, with or without firm consent, contact clients of the firm, in person or in writing, for the purpose of soliciting their present and future legal business? This is the question being asked because in recent years there has been a marked increase in the number of attorneys switching firms, many of whom seek to take with them the business of their former firm’s clientele. While the contours of permissible departure-based solicitation were once clearly and narrowly circumscribed by the rules of legal ethics, the continued validity of those restrictions is seriously placed in doubt by the …

The Future Of Liberal Legal Scholarship, David Skover, Ronald Collins

Faculty Articles

Earl Warren is dead. A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed. The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." The author’s present their views as a commentary to emphasize their preliminary character; they represent thier current assessment of where liberals stand and where they might redirect their energies. In Part I, they outline the reasons for believing that there …

Reconstituting 'Original Intent:' A Constitutional Law Encyclopedia For The Next Century, David Skover

Faculty Articles

In this article Professor Skover reviews the Encyclopedia of the American Constitution. The Encyclopedia describes, in a fairly balanced and accurate manner, the contemporary understanding of the American constitutional heritage. The Encyclopedia exhibits the important functions that an encyclopedic work may serve in the legal culture of the twenty-first century. This review essay explores this thought. Part I describes the Encyclopedia's organizational structure, the interdisciplinary nature of its commentaries, and the divergent characters of its contributors. Part II considers the potential for its use and explores its role as the record of "original intent" for this century's constitutional "founders."

Direct Broadcast Satellite: A Proposal For A Global/Regional System, Bryan Adamson, James Hsuing

Faculty Articles

The purpose of this article is to discuss the possibility of establishing a global/regional direct broadcast satellite (DBS) system. Albeit, in the past, there have been a number of initiatives aimed at forging a unified global DBS system, such initiatives have not been successful. The most significant barriers (political, rather than technical in nature) existing in the international negotiating arenas were spillover, equal access, privacy, national sovereignty, the free flow of information, prior consent, and cultural invasion. Although not all of these issues have been fully resolved, the time has come again for seriously considering the implementation of an international …

The Constitutionality Of The Solicitation Or Control Of Third-Country Funds For Foreign Policy Purposes By United States Officials Without Congressional Approval, George Van Cleve

Faculty Articles

This transcription of a speech covers the personal views of Professor Van Cleve regarding constitutionality of solicitation or control of third-country funds for foreign policy purposes. Specifically, he discusses the constitutional issue of the Iran-Contra affair, in which the Reagan administration decided to seek funding for the Contras from third countries.

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. …

Cadillacs, Gold Watches, And The Tax Reform Act Of 1986: The Continuing Evolution Of The Tax Treatment Of Gifts To Employees, Mark W. Cochran

Faculty Articles

To eliminate uncertainty for taxpayers and inconsistency from the courts, Congress passed the Tax Reform Act of 1986, which is applicable to “gifts” from employers to employees. Congress added three Internal Revenue Code provisions applicable to such gifts. First, Section 102 sets forth a general rule that property transferred by an employer to an employee shall not be excluded from the employee’s gross income as a gift. Second, Section 74 potentially excludes certain retirement awards. Third, Section 274 limits an employer’s deductions for such retirement awards. These three provisions should mark the end of many years of uncertainty for taxpayers …

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 …

Ethical Issues For Corporate Counsel In Internal Investigations: A Problem Analyzed, Drew L. Kershen

Faculty Articles

No abstract provided.

The Paradox Of A Title: Discrimination Within The Anti-Discrimination Provisions Of The Immigration Reform And Control Act Of 1986, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

When Soldiers Are Defendants, David A. Schlueter

Faculty Articles

In O’Callahan v. Parker, the U.S. Supreme Court adopted a “service connection” requirement for court-martial subject matter jurisdiction. For almost two decades that requirement caused numerous problems of interpretation and application. In Solorio v. United States, the Court overruled its decision in O’Callahan. While assigned to a Coast Guard unit in Juneau, Alaska, the accused committed numerous acts of sexual abuse against two minor daughters of other Coast Guard members. The crimes were not discovered, however, until after he had been transferred to Governors Island, New York, where he committed additional acts of sexual abuse on other daughters of Coast …