Digital Commons Network^™

Hendricks And The Future Of Sex Offender Commitment Laws, Eric S. Janus

Faculty Scholarship

The Supreme Court's decision in Kansas v. Hendricks suggests that few constitutional limitations will be imposed. This article discusses the four elements imposed by the Court in Hendricks, and then discusses the likely implications of the decision, using civil commitment laws currently on the books and actual post-Hendricks decisions. The article concludes that the imbalance between commitments and discharges will cause commitment populations to grow over the foreseeable future. Eventually the huge costs of commitment schemes will force serious assessment of whether the facial logic of these programs hides seriously distorted resource allocation and anti-therapeutic side-effects.

The Goals Of Environmental Enforcement And The Range Of Enforcement Methods In Israel And In The United States, Marcia R. Gelpe

Faculty Scholarship

The article examines enforcement of the environmental laws of Israel and of the United States. It concentrates on provisions for enforcement of the laws by government authorities--that is, either by administrative authorities or by the courts at the request of an administrative authority. Environmental laws in many jurisdictions may also be enforced by private actions. These private enforcement actions are not addressed specifically in this article, although much of what is said is also applicable to such actions.

Expanding The Circle Of Membership By Reconstructing The Alien: Lessons From Social Psychology And The Promise Enforcement Cases, Victor C. Romero

Faculty Scholarship

Recent legal scholarship suggests that the Supreme Court's decisions on immigrants' rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this …

Implied Wavier After Seminole Tribe, Kit Kinports

Faculty Scholarship

Part I of this Article briefly traces the history of the Supreme Court's Eleventh Amendment jurisprudence, focusing in particular on the opinions developing the doctrines of implied waiver and abrogation. Part II makes the case that the doctrine of implied waiver retains validity after Seminole Tribe, at least with respect to federal statutes passed pursuant to the Spending Clause that condition the receipt of federal funds on the states' waiver of the Eleventh Amendment and statutes passed under Congress's other Article I powers that regulate an activity voluntarily undertaken by the states. Finally, Part III considers other potential constitutional …

Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau

Faculty Scholarship

One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …

Hands Off! Civil Court Involvement In Conflicts Over Religious Property, Kent Greenawalt

Faculty Scholarship

In this Article, Professor Kent Greenawalt explores how civil courts can constitutionally resolve conflicts over religious property. Although the practical and theoretical significance of this part of First Amendment law has often been overlooked, issues concerning church property continue to raise difficulties for both the courts charged with their resolution and the church members who wish to avoid the courts' intervention entirely. This Article argues that the general approach of noninvolvement that the Supreme Court has advocated in this area is consonant with broader themes in religion clause adjudication. Within this more general approach, Professor Greenawalt considers the two alternative …

The Great Transformation Of Regulated Industries Law, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on whether the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most clearly in …

Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan

Faculty Scholarship

Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, …

The Process Of Terry-Lawmaking, Daniel C. Richman

Faculty Scholarship

The organizers of this Conference obviously gave a lot of thought to its structure. We started off with a session that showed the Supreme Court at its best, working under the gentle leadership of Chief Justice Warren, and guided by the sage counsel of Justice Brennan, to balance the demands of the Fourth Amendment with the exigencies of street encounters. Now we come to a session in which the Supreme Court comes off well, not merely in one, but in both papers. For Steve Saltzburg, Terry itself may not have been perfect, but, over time, the Court has made it …

Bloomer Girl Revisited Or How To Frame An Unmade Picture, Victor P. Goldberg

Faculty Scholarship

Nearly all contracts casebooks feature the saga of Shirley MacLaine's suit against Twentieth Century Fox arising from the cancellation of the proposed film Bloomer Girl. None really get the story right. To be fair, none try. The case is a vehicle for exploring the obligation of the victim of the breach of an employment contract to take alternative employment. If MacLaine refused an offer of alternative employment that was not "different and inferior," her failure to mitigate would mean that the earnings she would have received would be offset against the damages; so, asked the court, was the alternative …

The Erotic Of Torts, Carol Sanger

Faculty Scholarship

"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist ... that ... do[es] not respect the line between the intellectual and the sexual" (p. 12). Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means – and what its implications are for …

A Response To The Video, Charles F. Sabel

Faculty Scholarship

Let me preface my remarks by informing you that I am not a lawyer. That means that there are things I don't get and things that I'll say that you may not grasp immediately, because there are certain assumptions we don't share. To illustrate that, let me just tell you, I don't even get lawyer jokes.

For example, when I saw the movie So Goes A Nation, and Sam Sue says, "Law schools teach basic skills," I didn't realize that was a joke until you all laughed at it. So there are many subtleties of this sort that escape me. …

Police Patrol, Judicial Integrity, And The Limits Of Judicial Control, Debra A. Livingston

Faculty Scholarship

I want to thank St. John's for inviting me to be part of this reexamination of Terry v. Ohio – and particularly for this opportunity to participate in a roundtable discussion on the relationship between stop and frisk doctrine and the substantive law. This is an important and timely topic and I am happy to see it being discussed in such a serious venue.

When I was preparing my remarks for today, I thought I should call them, "Terry and the Substantive Law: A Hard, Hard Problem." Fortunately, I have sworn off titles with colons, so I settled on "Police …

A Comment On The 1996 United Kingdom Arbitration Act, Thomas E. Carbonneau

Faculty Scholarship

The 1996 United Kingdom Arbitration Act is a remarkable piece of legislation. It is a highly accessible statutory framework both from a linguistic and organizational standpoint. The 1996 Act represents a substantial improvement over prior English arbitration statutes,including the 1979 Act. The new legislation is comprehensive, thorough, cogent and coherent. In its presentation and content, it easily rivals both longstanding and recentlegislative enactments on arbitration. It is built upon a wealth of knowledge and expertise of arbitration law and practice, and embodies a very contemporary and integrated concept of arbitration. This commentary endeavors to highlight and appraise the most significant …

Lawyer Discrimination Against Clients: Outright Rejection--No; Limitations On Issues And Arguments-Yes, Sam Stonefield

Faculty Scholarship

The issue of lawyer discrimination brings new perspectives to traditional topics like the practice of law, the role of the lawyer and the relationship with, and rights of, the client. It forces us to examine the nature of lawyer discretion, the limits of that discretion and the consequences of trying to regulate that discretion. The examinationis a daunting task. This essay offers an approach that attempts to protect both the prohibition against discrimination and the practice of law and to accommodate the tension that necessarily accompanies this effort. It suggests that the best solution is to prohibit lawyers from discriminating …

Testing The Dark Matter Hypothesis With Low Surface Brightness Galaxies And Other Evidence, Stacy S. Mcgaugh

Faculty Scholarship

The severity of the mass discrepancy in spiral galaxies is strongly correlated with the central surface brightness of their disks. Progressively lower surface brightness galaxies have ever larger mass discrepancies. No other parameter (luminosity, size, velocity, morphology) is so well correlated with the magnitude of the mass deficit. The rotation curves of low surface brightness disks thus provide a unique data set with which to probe the dark matter distribution in galaxies. The mass discrepancy is apparent from R = 0, giving a nearly direct map of the halo mass distribution. The luminous mass is insignificant. Interpreting the data in …

Law, Language And Lenity, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Ban On Welfare For Felony Drug Offenders: Giving A New Meaning To 'Life Sentence', Cynthia Godsoe

Faculty Scholarship

No abstract provided.

We're All Capitalist Now: The Importance, Nature, Provision And Regulation Of Investor Education, James A. Fanto

Faculty Scholarship

No abstract provided.

The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller

Faculty Scholarship

For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," …

Free Speech And Good Character, Vincent A. Blasi

Faculty Scholarship

Early proponents of the freedom of speech such as John Milton, John Stuart Mill, and Louis Brandeis emphasized the role expressive liberty plays in strengthening the character of persons entrusted with such freedom. These theorists argued that character traits such as civic courage, independence of mind, and the capacity to learn from experience and adapt are nurtured by trusting citizens with dangerous ideas. Today there is much talk about good character in relation to free speech disputes-but all on the side of those who would regulate speakers. It is time to remember that a concern about character cuts both ways …

Judicial Resolution Of Issues About Religious Conviction, Kent Greenawalt

Faculty Scholarship

What can judges and lawyers learn about religion from those whose field is religious studies, and from others who can illuminate the phenomenon of religion? Using examples provided in Winnifred Fallers Sullivan's paper, I want to place this general question within the fabric of free exercise law.

What I say assumes that some legal issues she raises have reasonably clear answers. Given the cavalier way the Supreme Court turned free exercise law upside down in Employment Division v. Smith, and given its harsh reception of the Religious Freedom Restoration Act (RFRA), which had received overwhelming Congressional support, little in this …

Achieving Consensus On Defective Product Design, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Slashing And Burning Prisoners' Rights: Congress And The Supreme Court In Dialogue, Susan Herman

Faculty Scholarship

No abstract provided.

Policing For Profit: The Drug War’S Hidden Economic Agenda, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

In the following pages, we first describe in more detail how the Drug War’s financial largess has kept its soldiers in business. We then discuss the destructive impact of this economic regime, marshaling evidence to show that the corruption of law enforcement priorities and wholesale miscarriages of justice can be attributed to the operation of these incentives. Finally, we explore potential legal and legislative remedies through which law enforcement may regain its bearings.

Our investigation focuses on the economic underpinnings of current drug law enforcement policy. Drug policy also raises an extraordinarily broad range of moral, health, and criminological concerns, …

Section 2254(D) Of The New Habeas Statute: An (Opinionated) User's Manual, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

The Mccleskey Puzzle: Remedying Prosecutorial Discrimination Against Black Victims In Capital Sentencing, Ashutosh Bhagwat, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Aviation Products Liability For Manufacturing And Design Defects: Two Recent Developments, David I. Levine, Carel J. Stolker

Faculty Scholarship

No abstract provided.

Reconceiving Privacy: Relationships And Reproductive Technology, Radhika Rao

Faculty Scholarship

No abstract provided.

Legal Education Then And Now: Changing Patterns In Legal Training And In The Relationship Of Law Schools To The World Around Them, Joan C. Williams, Bob Gordon, Jack Schlegel, James May

Faculty Scholarship

No abstract provided.