Digital Commons Network^™

Moral Pluck: Legal Ethics In Popular Culture, William H. Simon

Faculty Scholarship

Favorable portrayals of lawyers in popular culture tend to adopt a distinctive ethical perspective. This perspective departs radically from the premises of the "Conformist Moralism" exemplified by the official ethics of the American bar and the arguments of the proponents of President Clinton's impeachment. While Conformist Moralism is strongly authoritarian and categorical, popular culture exalts a quality that might be called "Moral Pluck " – a combination of resourcefulness and transgression in the service of basic but informal values. This Essay traces the theme of Moral Pluck through three of the most prominent fictional portrayals of lawyers in recent years …

Lucas Rosa V. Park West Bank And Trust Company, Katherine M. Franke

Faculty Scholarship

In July of 1998 something rather mundane happened: Lucas Rosa walked into Park West Bank in Holyoke, Massachusetts and asked for a loan application. Since it was a warm summer day, and because she wanted to look credit-worthy, Rosa wore a blousey top over stockings. Suddenly, the mundane transformed into the exceptional: When asked for some identification, Rosa was told that no application would be forthcoming until and unless she went home, changed her clothes and returned attired in more traditionally masculine/male clothing. Rosa, a biological male who identifies herself as female was, it seems, denied a loan application on …

Joel Feinberg On Crime And Punishment: Exploring The Relationship Between The Moral Limits Of The Criminal Law And The Expressive Function Of Punishment, Bernard Harcourt

Faculty Scholarship

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest inexpressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg's essay. As Carol Steiker observes, "Joel Feinberg can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay, The …

Guns, Crime, And Punishment In America, Bernard E. Harcourt

Faculty Scholarship

There are over 200 million firearms in private hands in the United States, more than a third of which are handguns. In 1993 alone, it is estimated that 1.3 million victims of serious violent crime faced an offender with a gun. In 1999, there were approximately 563,000 such victims. Estimates of defensive uses of firearms – situations where individuals used a gun to protect themselves, someone else, or their property – range from 65,000 to 2.5 million per year. Punishments for crimes committed with a firearm are severe: under the federal firearms enhancement statute, the mandatory minimum sentence for use …

Copyright And Control Over New Technologies Of Dissemination, Jane C. Ginsburg

Faculty Scholarship

The relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. Historically, when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. However, when owners seek instead to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to copyright control over that new market. Today, the courts and Congress regard the unlicensed distribution of works over the Internet as impairing copyright owners' ability to avail …

Divorce, Children's Welfare, And The Culture Wars, Elizabeth S. Scott

Faculty Scholarship

Are children harmed when their parents divorce? If so, should parents' freedom to end marriage be restricted? These questions have generated uncertainty and controversy in the decades since legal restraints on divorce have been lifted. During the 1970s and 80s, the traditional conviction that parents should stay together "for the sake of the children" was supplanted by a view that children are usually better off if their unhappy parents divorce. By this account, divorcing parents should simply try to accomplish the change in status with as little disruption to their children's lives as possible. This stance has been challenged sharply …

From The White Paper To The Proposal For A Council Regulation, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This Paper analyses how the network of enforcers envisaged in the Proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty (September 2000) would operate. We identify four issues. First, we observe that the Proposal (unlike the White Paper) includes safeguards to avoid a shift of competence in favour of national competition laws, which may be questionable in terms of subsidiarity. Second, we recognise that the accountability of antitrust authorities might vary across the members of the network, so that, for instance, some authorities may be …

What Happened To Property In Law And Economics?, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism about the value of conceptual analysis, as opposed to functional assessment of institutions. There is, however, a deeper reason for the indifference to property. It is a commonplace of academic discourse that property is simply a "bundle of rights," and that any distribution of rights and privileges among persons with respect to things can be dignified with the (almost …

An "Effective Death Penalty"? Aedpa And Error Detection In Capital Cases, James S. Liebman

Faculty Scholarship

On June 11, 2001, the United States of America executed Timothy McVeigh. Dwarfed among the many unspeakable evils that Mr. McVeigh wrought is a speakable one I will address here, namely, the so-called Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

Abbreviated, AEDPA's political history is as follows: In November 1994, the "Gingrich Congress" was elected on its Contract with America platform. One of the planks of that platform – one of the few that actually ended up passing Congress – was the so-called "Effective Death Penalty Act." That proposal had little to do with the death penalty and, …

Second Generation Employment Discrimination: A Structural Approach, Susan Sturm

Faculty Scholarship

The judiciary's traditional rule-based approach has been successful in reducing overt discrimination against women and people of color. It has been less effective in addressing more subtle and complex forms of workplace inequity. These second generation forms of bias result from patterns of interaction, informal norms, networking, mentoring, and evaluation. Drawing on the potential of recent Supreme Court decisions, Professor Sturm proposes a structural regulatory solution to this problem of second generation employment discrimination. Her approach links the efforts of courts, workplaces, employees, lawyers, and mediating organizations to construct a regime that encourages employers to engage in effective problem solving. …

Bar Association Ethics Committees: Are They Broken Conference On Legal Ethics: What Needs Fixing, Bruce A. Green

Faculty Scholarship

This Article explores the work of bar association ethics committees. These are committees established by bar associations to give advice to lawyers about how to comply with the applicable rules of professional conduct. My question is, are these committees broken? Over the past two decades, several legal academics have concluded that they are. At its harshest, the critique is that ethics committees, typified by the American Bar Association's ("ABA") ethics committee, publish opinions that respond to trivial questions by providing poorly reasoned answers on which nobody can or does rely, and that the reason that the committees' opinions are inadequate …

Unnecessary Privacy , Carl Felsenfeld

Faculty Scholarship

An individual's right to privacy in an electronic society has gained international attention as a booming new field. Its birth may roughly be marked to coincide with the birth of the Internet. The flow of information without limit or boundary has raised concerns with the consumer spokespeople in the Western World that personal information about them may flow as easily as general information about Machu Pichu, Keynesian economics, or Harvard College. The fear is that will cause individuals harm, ranging from personal embarrassment to a loss of civil liberties. Therefore, movements are developing to limit this flow of information. The …

Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas H. Lee

Faculty Scholarship

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. - Eleventh Amendment to the Constitution of the United States of America The thesis of this article is that the Eleventh Amendment, ratified in 1798, represented the incorporation into the American domestic constitutional law of federalism (specifically, the doctrine of state sovereign immunity) the late eighteenth-century international law rule that only states have rights against other states …

E-Commerce And Trans-Atlantic Privacy, Joel R. Reidenberg

Faculty Scholarship

For almost a decade, the United States and Europe have anticipated a clash over the protection of personal information. Between the implementation in Europe of comprehensive legal protections pursuant to the directive on data protection and the continued reliance on industry self-regulation in the United States, trans-Atlantic privacy policies have been at odds with each other. The rapid growth in e-commerce is now sparking the long-anticipated trans-Atlantic privacy clash. This Article will first look at the context of American e-commerce and the disjuncture between citizens' privacy and business practices. The Article will then turn to the international context and explore …

Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib

Faculty Scholarship

Proposals for practical institutional reforms are notoriously absent from discussions about deliberative democracy. It is imperative to engage in the “nuts and bolts” debate of just what kinds of changes we discourse theorists or deliberative democrats want to effect. Here I would like to try to synthesize a reform proposal of my own based upon three major assumptions. Without argument, I assume a largely discourse-theoretic view of democracy that takes for granted the republican virtue of collective self-government as well as the Kantian claim that each citizen should be the author of his own laws. I further assume that our …

Multiracial Matrix: The Role Of Race Ideology In The Enforcement Of Antidiscrimination Laws, A United States-Latin America Comparison, Tanya K. Hernandez

Faculty Scholarship

This Article examines the role of race ideology in the enforcement of antidiscrimination laws. Professor Hernandez demonstrates the ways in which the U.S. race ideology is slowly starting to resemble the race ideology of much of Latin America. The evolving U.S. race ideology is a multiracial matrix made up of four precepts: (1) racial mixture and diverse racial demography will resolve racial problems; (2) fluid racial classification schemes are an indicator of racial progress and the colorblind abolition of racial classifications an indicator of absolute racial harmony; (3) racism is solely a phenomenon of aberrant racist individuals; and (4) focusing …

The Rise Of Dispersed Ownership: The Roles Of Law And The State In The Separation Of Ownership And Control, John C. Coffee Jr.

Faculty Scholarship

Recent scholarship on comparative corporate governance has produced a puzzle. While Berle and Means had assumed that all large public corporations would mature to an end-stage capital structure characterized by the separation of ownership and control, the contemporary empirical evidence is decidedly to the contrary. Instead of convergence toward a single capital structure, the twentieth century saw the polarization of corporate structure between two rival systems of corporate governance:

1. A Dispersed Ownership System, characterized by strong securities markets, rigorous disclosure standards, and high market transparency, in which the market for corporate control constitutes the ultimate disciplinary mechanism; and
2. A …

The Right To Self-Government After Bush V. Gore, Paul D. Carrington, H. Jefferson Powell

Faculty Scholarship

'Bush v. Gore' was decided a year ago. As expected, it evoked a flood of journalistic and academic commentary. The present authors write to express dissatisfaction with the resulting literature. They find it in general to be dominated by the usual political discourse conducted from opposite ends of the usual political spectrum, with both ends sharing an assumption that the Supreme Court was animated in its decision by the usual political motives that it has become conventional to see in the actions of that institution. Left almost completely out of view have been the more personal selfish motives of the …

Lawyers, Jails, And The Law’S Fake Bargains, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Institutionalizing Constitutional Interpretation, Jack Knight

Faculty Scholarship

When a constituent assembly or other constitution-making body convenes in order to draft a constitution, the members of that assembly face a complex task. Their main goal is to agree on a constitution that will serve as the basis for a government for the present and, presumably, future generations. The constitution must establish a framework for the administration of government as well as enumerate the principles that will govern the relationship between the government and the citizenry. This is essentially a process of creating political institutions that will structure the behavior of the members of that society, a set of …

Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

Law And Military Interventions: Preserving Humanitarian Values In 21st Conflicts, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Challenges To Racial Redistricting In The New Millennium: Hunt V. Cromartie As A Case Study, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Cowboy Prosecutors And Subpoenas For Incriminating Evidence: The Consequences And Correction Of Excess, Robert P. Mosteller

Faculty Scholarship

No abstract provided.

The Uniform State Law Process: Will The Uma And Ruaa Be Adopted By The States?, James J. Brudney

Faculty Scholarship

Most practicing attorneys and legal academics first become aware of uniform statutes when studying the Uniform Commercial Code (UCC) in law school. Yet the UCC's widespread acceptance and periodic renewal are not the legacy that generally attends uniform law ventures This overview of the uniform statutory process offers some perspective for proponents of the recently approved Uniform Mediation Act (UMA) and Revised Uniform Arbitration Act (RUAA) as they attempt to secure enactment in multiple state legislatures.

Designated Diffidence: District Court Judges On The Courts Of Appeals Papers Of General Interest, James J. Brudney, Corey Distlear

Faculty Scholarship

Since 1980, District CourtJudges, designated pursuant to federal statute, have helped decide over 75,000 court of appeals cases-nearly one of every five merits decisions. Although scholars and judges have warned that the presence of these visitors on appellate panels may undermine consistency, legitimacy, or collegiality, little empirical evidence exists related to such concerns. Working with an especially complete data set of labor law opinions, the authors found that district court visitors perform in a much more diffident fashion than their appellate colleagues. They contribute notably fewer majority opinions and dissents. In addition, their participations do not reflect their professional or …

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …

1977 Code Of Ethics For Arbitrators: An Outside Perspective, The Symposium: Ethics In A World Of Mandatory Arbitration, John D. Feerick

Faculty Scholarship

If ADR is to remain a vibrant part of the judicial landscape, it is essential that efforts further shape ethical standards and guidelines, as well as their practical connotations. The framers of the United States Constitution were very careful to establish a public justice system comprised of judges and juries operating within a framework of standards and protections designed to assure justice and fairness while simultaneously promoting public confidence. We should give similar care to developing processes through which we purportedly intend to accomplish similar objectives in resolving disputes and controversies. At the very least, the private nature of these …

Reflections On The Ethics Of Legal Academics: Law Schools As Mdps; Or, Should Law Professors Practice What They Teach Symposium: Ethics Of Law Professors, Bruce A. Green

Faculty Scholarship

[A member of the House of Commons said in Samuel Johnson's presence] that he paid no regard to the arguments of counsel at the bar of the House of Commons, because they were paid for speaking. JOHNSON. 'Nay, Sir, argument is argument. You cannot help paying regard to their arguments, if they are good, If it were testimony, you might disregard it, if you knew that it were purchased. There is a beautiful image in Bacon upon this subject: testimony is like an arrow shot from a long bow; the force of it depends on the hand that draws it. …

Testing Multiple Intelligences: Comparing Evaluation By Simulation And Written Exam , Ian Weinstein

Faculty Scholarship

Written examinations play a key role in legal education. The LSAT is the most important factor in law school admissions. Once students enroll in law school, exams are used to evaluate and sort first year students. At most American law schools, a single, end of semester or end of year, timed, written, in class exam determines the grade in each first year class.' Although exams continue to play a major role throughout law school, once students are sorted at the end of first year it is often difficult for them to significantly change their place in the law school hierarchy. …