Digital Commons Network^™

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

Faculty Scholarship

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

Life Style, Health Status, And Distributive Justice, Robert L. Schwartz

Faculty Scholarship

The newest and most original scapegoat upon which we can place the blame for the high cost of health care are those whose life style choices puts their health or lives at risk. Of course, if our health care cost and access problems are a consequence of unhealthy choices made by autonomous individuals, we are relieved of the obligation of figuring out how to reform our health care delivery system. In that case, the solution to our health care problem is obvious - we merely need to impose appropriate penalties on those who make costly, immoral and unhealthy life style …

The Prospects Of Pension Fund Socialism, William H. Simon

Faculty Scholarship

A substantial portion of corporate shareholdings in the United States is held by pension funds that secure retirement benefits for broad segments of the workforce. A number of commentators have argued that the assets secured by these pension funds should be used to promote the creation of a more democratic and egalitarian economy. Specifically, pension assets could be invested in projects that are deemed socially worthwhile, wielded in strategic "corporate campaigns" against companies resisting unionization, or directed toward allowing workers to obtain control over their own companies. This program of employing pension assets in the pursuit of a more democratic …

Private Insurance, Social Insurance, And Tort Reform: Toward A New Vision Of Compensation For Illness And Injury, Kenneth S. Abraham, Lance Liebman

Faculty Scholarship

The United States does not have a system for compensating the victims of illness and injury; it has a set of different institutions that provide compensation. We rely on both tort law and giant programs of public and private insurance to compensate the victims of illness and injury. These institutions perform related functions, but the relationships among them are far from coherent. Indeed, the institutions sometimes work at cross-purposes, compensating some victims excessively and others not at all.

The absence of a coherent system of compensation is reflected even in suggested reforms of existing institutions. Proposals to reform tort law …

Cunning Stunts: From Hegemony To Desire A Review Of Madonna's Sex, Katherine M. Franke

Faculty Scholarship

What is sex? Is it an accidental or contingent property that every person can be said to have? I am brunette and female, but the Pope is bald and male. Or, is sex more constitutive, that is, an essential part of who we are? In this respect, the claim is often made that women experience the world ditfierently than men. Or, is sex something we do?

If we consider sex as an adjective, can we or should we be able to manipulate it like a new hair style? Or does the notion of sexual malleability trivialize the significance …

Civil Forfeiture: A Higher Form Of Commercial Law?, Steven L. Schwarcz, Alan E. Rothman

Faculty Scholarship

In this Article, Messrs. Schwarcz and Rothman analyze the disquieting impact of civil forfeiture law on creditors' rights. The Article begins by describing the historical origins of civil forfeiture and its development into current day law. The Article then explores the tension between forfeiture law and commercial and bankruptcy law by examining the effect of a forfeiture action on unsecured and undersecured creditors. The Article evaluates a recent model for balancing governmental and commercial law interests, and concludes by suggesting reforms to the present civil forfeiture scheme.

Blackmail: The Paradigmatic Crime, George P. Fletcher

Faculty Scholarship

The ongoing debate about the rationale for punishing blackmail assumes that there is something odd about the crime. Why, the question goes, should demanding money to conceal embarrassing information be criminalized when there is nothing wrong with the separate acts of keeping silent or requesting payment for services rendered? Why should an innocent end (silence) coupled with a generally respectable means (monetary payment) constitute a crime? This supposed paradox, however, is not peculiar to blackmail. Many good acts are corrupted by doing them for a price. There is nothing wrong with government officials showing kindness or doing favors for their …

The Promise Of Participation, Susan P. Sturm

Faculty Scholarship

Professor Owen Fiss's seminal work, The Civil Rights Injunction, inspired a generation of scholars and practitioners to flesh out the significance of his insights. With remarkable prescience, he captured a moment in intellectual and legal history and created a vocabulary that continues to shape the debate over the court's role in public law litigation. The Allure of Individualism continues the Fiss tradition of capturing a singular, emblematic issue and sketching with broad strokes the contours of emerging debate. His springboard is Martin v. Wilks, a case that aptly frames the current dilemmas and choices posed by structural injunction litigation. Martin …

Enslaved To Judicial Supremacy?, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

The Unworkability Of Court-Made Enterprise Liability: A Reply To Geistfeld, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Future Fall-Out From The Genetic Revolution, Robert A. Bohrer

Faculty Scholarship

It is argued that the genetic engineering revolution now under way is fundamentally different from other industrial revolutions in that humans are developing the technological power to change themselves. This article begins with an overview of the technology involved, discusses the Human Genome Initiative (HGI) programme and gene therapy research, and then uses several possible future scenarios to discuss potential legal and ethical issues.

Particularity And Generality: Challenges Of Feminist Theory And Practice In Work On Woman-Abuse, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Violence Against Women And Legal Education: An Essay For Mary Joe Frug, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Shell Games: The Continuing Legacy Of Rights To Minerals And Water On Spanish And Mexican Land Grants In The Southwest, G. Emlen Hall

Faculty Scholarship

This paper explores generally this paradoxical approach to mineral and water rights on confirmed Spanish and Mexican land grants. The analysis treats mineral and water rights separately. For each critical land grant resource, the paper explicates basic law of the Southwest's antecedent sovereigns. It then suggests how those Spanish and Mexican rights fit within the 1848 Treaty of Guadalupe Hidalgo guarantee of protection of "property rights." It proceeds to analyze how the United States implemented those guarantees, suggesting that the treatment of the succeeding sovereign owed more to its own law than it did to the law of the antecedent …

Integrating Theory With Practice, Robert C Power

Faculty Scholarship

No abstract provided.

Self-Paternalism In The Marketplace, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Effect Of New Rule 56 On The Law Of Inequitable Conduct, R. Carl Moy

Faculty Scholarship

This article discusses Rule 56 of the Patent and Trademark Office. Part II discusses changes from the old to the new Rule 56, and examines the former’s relationship to the law of inequitable conduct. Part III elaborates on the current status of the PTO’s rulemaking efforts, and Part IV is focused on the new Rule under the APA. Parts V and VI are about new Rule 56 as a hortatory statement and common-law jurisprudential limitations, respectively. The author ultimately concludes that the PTO could have chosen to approach the Federal Circuit as an amicus without a prior rulemaking proceeding. That …

Voice, Perspective, Truth, And Justice: Race And The Mountain In The Legal Academy, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Precaution, Participation And The "Greening" Of International Trade Law, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Law And Literature: Representing Lesbians, Anne B. Goldstein

Faculty Scholarship

What is involved in representing a lesbian in law or in literature? The premise of this Article is that the work of novelists is enough like the work of lawyers that useful insights can be drawn in at least one direction. That is, lawyers can learn how to represent lesbian clients better by studying books with lesbian characters.

Public Life And Hostility To Religion, Frederick Mark Gedicks

Faculty Scholarship

Many who value the contributions of religion to American life have contended that American public life is hostile to religion. They perceive many of the Supreme Court's Religion Clause opinions as hostile to religion, and circulate anecdotes about the antireligious hostility of public life. Studies also suggest that some of the principle actors in American public life systematically marginalize religious viewpoints relative to secular ones. Nevertheless, others are baffled by the suggestion that public life discriminates against religion. These people note that religion is deeply (if controversially) involved in much of contemporary American politics, and dismiss anecdotes about such hostility …

"An Introduction To The European Economic Community And Intellectual Properties, Beryl R. Jones-Woodin

Faculty Scholarship

No abstract provided.

The Political Balance Of The Religion Clauses, Abner S. Greene

Faculty Scholarship

When the Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not protect religious practices from otherwise valid laws that incidentally burden those practices, it followed a particular theory of democratic politics. That some laws might unintentionally burden certain religious practices is, said the Court, an "unavoidable consequence of democratic government [that] must be preferred to a system in which each conscience is a law unto itself." The Court was certainly right in one sense: To claim that conscientious objection to an otherwise valid law should exempt one from that law is to claim that …

The Changing Landscape Of Human Experimentation: Nuremberg, Helsinki, And Beyond, George J. Annas

Faculty Scholarship

Since World War II there have been persistent efforts at both the national and international level to develop rules to protect the rights and welfare of subjects of human experimentation.' These efforts have focused primarily on codifying the rights of subjects, and protecting their welfare by prior peer review of research protocols. In recent years research regulations have been under attack by politicians, drug companies, researchers, and advocacy groups. In less than half a century, human experimentation has been transformed from a suspect activity into a presumptively beneficial activity. With this transformation, traditional distinctions between experimentation and therapy, subject and …

Socially Responsible Investing In An Inefficient Market: Doing Good Versus Doing Well, Maria O'Brien

Faculty Scholarship

The debate about the desirability and efficacy of socially responsible investing (SRI) is about as old as the practice of investing itself. Indeed, in spite of a persistent inability on the part of all participants in the debate to develop a simple, coherent definition of what is meant by socially responsible investing, the debate continues. Many funds that purport to engage in SRI have surprisingly little in common. However, if a single political issue could be said to have attracted the attention of virtually every socially responsible fund currently in existence, it would have to be South Africa's abhorrent practice …

The Poverty Of Privacy?, Linda C. Mcclain

Faculty Scholarship

This Article has two aims. First, it defends a continuing role for the right of privacy in arguments -for women's reproductive freedom against charges that privacy is an impoverished concept. Second, it raises cautions about certain feminist critiques of privacy that would ground this freedom in notions of reproductive responsibilities. As this Article was first presented at a conference, "Reproductive Issues in a Post-Roe' World," held in the wake of Webster v. Reproductive Health Services,2 the first question is: Are we now, given the Supreme Court's recent decision in Planned Parenthood v. Casey,' in a "post-Roe world"? Furthermore, what remains …

Judicial Federalism In Action: Coordination Of Litigation In State And Federal Courts, William W. Schwarzer, Nancy E. Weiss, Alan Hirsch

Faculty Scholarship

No abstract provided.

Rorty, Radicalism, Romanticism: The Politics Of The Gaze, Joan C. Williams

Faculty Scholarship

No abstract provided.

The Faith Healers, Calvin R. Massey

Faculty Scholarship

No abstract provided.

The Rulemaking Continuum, Peter L. Strauss

Faculty Scholarship

The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the judicial …