Digital Commons Network^™

Reflections Of Irac, Chris Iijima, Beth Cohen

Faculty Scholarship

The Authors discuss IRAC as a tool to help students provide structure to legal analysis. Students use this tool not only in writing objective and persuasive memos and briefs, but also in writing answers to examination questions. The Authors give their comments, highlighted by the “Point/Counterpoint,” which present a wide range of views on the efficacy of this tool.

Reconstructing The Bill Of Rights: A Reply To Amar And Marcus's Triple Play On Double Jeopardy, Susan Herman

Faculty Scholarship

No abstract provided.

Feminism And The False Dichotomy Of Victimization And Agency, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Justice Blackmun And Securities Arbitration: Mcmahon Revisited, James A. Fanto

Faculty Scholarship

No abstract provided.

The Identity Crisis: A Vision Of The Right Of Publicity In The Year 2020 [Symposium, Moderator], Beryl R. Jones-Woodin

Faculty Scholarship

No abstract provided.

Liability-Based Fee-Shifting Rules And Settlement Mechanisms Under Incomplete Information, Eric Talley

Faculty Scholarship

Recent years have seen a debate over litigation reform grow increasingly agitated. Attorneys, judges, academics, and politicians now readily and regularly disagree about how or whether to combat the debilitating litigiousness commonly purported to infect the American Bar. Within this debate, few reform proposals have received as much attention as "fee-shifting" provisions, which, in their most popular incarnation, reallocate litigation costs (particularly attorney's fees) based on the outcome of the liability phase of a trial. This attention is perhaps justified, given the nonuniformity of such rules among industrialized nations. For instance, in the British Commonwealth and much of Continental Europe, …

Linguistic Indeterminacy And The Rule Of Law: On The Perils Of Misunderstanding Wittgenstein, Christian Zapf, Eben Moglen

Faculty Scholarship

The central article of faith of the traditional understanding of the Rule of Law is that precedent uniquely determines the outcome of legal cases. Skepticism about that faith, however, is widespread. Critical Legal Scholars, as well as their intellectual ancestors, the Legal Realists, have frequently attacked the legitimacy of the received model and the formalist view of the relationship between the law and its individual applications that underlies the model. The common aim of these attacks is to demonstrate that the law is indeterminate in outcome and that the supposed constraints of the Rule of Law on judges are fictions.

Regulatory Decisionmaking In The European Commission, George A. Bermann

Faculty Scholarship

As an institution variously described as the "motor" or "engine" of European integration and as the European Union's "executive branch," the Commission of the European Communities finds itself at the center of Community decisionmaking. Yet its decisional processes are still quite poorly understood, at least in the United States. The relatively poor grasp of Commission decisionmaking is certainly not due to any general lack of interest in procedure within the American audience. The problem lies more in the highly restrictive view of decisionmaking that traditionally dominates procedural accounts of the Community institutions. Those accounts have tended to reflect three preoccupations. …

The Central Mistake Of Sex Discrimination Law: The Disaggregation Of Sex From Gender, Katherine M. Franke

Faculty Scholarship

Contemporary sex discrimination jurisprudence accepts as one of its foundational premises the notion that sex and gender are two distinct aspects of human identity. That is, it assumes that the identities male and female are different from the characteristics masculine and feminine. Sex is regarded as a product of nature, while gender is understood as a function of culture. This disaggregation of sex from gender represents a central mistake of equality jurisprudence.

Antidiscrimination law is founded upon the idea that sex, conceived as biological difference, is prior to, less normative than, and more real than gender. Yet in every way …

Exploiting The Artist's Commercial Identity: The Merchandizing Of Art Images, Jane C. Ginsburg

Faculty Scholarship

"Merchandizing properties" are not a recent arrival on the copyright and trademark scene. As early as the 1930s, the Walt Disney Company foresaw the substantial economic gains from licensing the images of its animated motion picture characters in a variety of consumer media, from publications, to soft toys, clothing and household items. Most recently, the World Intellectual Property Organization has prepared a substantial comparative law study of "Character Merchandising." The merchandizing of fine arts images, however, is a more recent development, and is one that has so far received less attention from academic commentators. This article offers some preliminary observations, …

Legal Enforcement Of Morality, Kent Greenawalt

Faculty Scholarship

In modern Western political and legal thought, the subject of legal enforcement of morality is narrower than the literal coverage of those terms. That is because much legal enforcement of morality is uncontroversial and rarely discussed. Disagreement arises only when the law enforces aspects of morality that do not involve protecting others from fairly direct harms. More precisely, people raise questions about legal requirements (1) to perform acts that benefit others, (2) to refrain from acts that cause indirect harms to others, (3) to refrain from acts that cause harm to themselves, ( 4) to refrain from acts that offend …

Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt

Faculty Scholarship

As the 1994 term drew to a close, "tests" for the Religion Clauses were in nearly total disarray. Apart from cases of discrimination against religions, and disputes over church property, a student of the Supreme Court's jurisprudence could not formulate any general tests that a majority of the Justices clearly support. As exciting as this state of affairs is for those who welcome uncertainty and change, it is disquieting for lawyers and clients, for judges who must decide free exercise and establishment claims, and for Supreme Court Justices who aspire to stable principles of adjudication. In this essay, I provide …

Rediscovering Client Decisionmaking: The Impact Of Role-Playing, Mary Zulack

Faculty Scholarship

There are more things of importance to representing clients than are disclosed through a typical interview or counseling session, even a session undertaken by a lawyer earnestly attempting to hear rather than ignore the client. We lawyers are often vividly aware, when we pause to contemplate the point, that we do not know all we should about our clients. We may also believe that we have great gulfs of knowledge and experience to cross in order to hear and understand any particular client. Further, we fear that our ability to cross these gulfs is limited by the human, and lawyerly, …

Reframing The Debate On Health Care Reform By Replacing Our Metaphors, George J. Annas

Faculty Scholarship

Metaphors matter, as our sterile debate on the fi-nancing of health insurance demonstrates so well. In that debate the traditional metaphor of American medicine, the military metaphor, was displaced by the market metaphor in public discourse. Metaphors, which entice us to understand and experience “one kind of thing in terms of another . . . play a central role in the construction of social and political reality.” The market metaphor proved virtually irresistible in the public arena and led Congress to defer to market forces to “reform” the financing of health insurance in the United States.

A Square Peg In A Vicious Circle: Stephen Breyer's Optimistic Prescription For The Regulatory Mess, Eric J. Gouvin

Faculty Scholarship

This Article reviews the book by Supreme Court Justice, Steven G. Breyer, "Breaking The Vicious Circle: Toward Effective Risk Regulation. " The Author discusses this book's most significant contribution that draws attention to the current regulatory regime's systemic problems, thereby encouraging serious discussion about how to "reinvent" the regulatory process. Breyer courageously points out that the political legitimacy of the process rests to some degree on the effectiveness of its product. This Review outlines the systemic problems and the "vicious circle" identified by Justice Breyer and then proceeds to review his proposed solution. The final part presents several criticisms of …

The Morphology Of Low Surface Brightness Disk Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

We present UBVI and Ha images of a sample of Low Surface Brightness (LSB) disk galaxies. These galaxies are generally late types, if they can be sensibly classified at all. However, they are not dwarfs, being intrinsically large and luminous. The morphology of LSB galaxies is discussed in terms of the physical interpretation of the Hubble sequence. Galaxies with high contrast relative to the sky background are subject to being more finely typed than those that appear merely as fuzzy blobs on photographic plates. This causes the stages of the Hubble sequence to be nonlinear in the sense that large …

Political Correctness In Jury Selection, George P. Fletcher

Faculty Scholarship

The values of equality and freedom are in constant tension, or so some think. The more society stresses equality, the less freedom people have. For example, Bruce Ackerman would abolish inheritance in his utopian society to insure that every generation begins on an equal footing. Many commentators have advocated restrictions on pornography and hate speech in order to protect the likely targets of these traditionally protected uses of free speech. Additionally, Catharine MacKinnon has invoked the principle of equality in the form of protecting disempowered minorities to argue for a restriction on liberty and freedom. Conversely, the more economic freedom …

Taking Private Ordering Seriously, Avery W. Katz

Faculty Scholarship

In recent years, the rules and practices of private groups have attracted substantial attention within the field of law and economics. In applications ranging from Robert Ellickson's seminal work on rancher/farmer relations in Shasta County, California, to Lisa Bernstein's investigation of extralegal contractual relations among wholesale diamond traders, to Robert Cooter's study of aboriginal customs in Papua New Guinea, to Robert Scott and Alan Schwartz's analysis of the rulemaking procedures of the American Law Institute, an increasing number of legal and economic scholars have shown how private systems of rules work to regulate economic relations among the communities that adopt …

Proposed Evidence Rules 413 To 415 – Some Problems And Recommendations, James S. Liebman

Faculty Scholarship

Section 320935 of the Violent Crime Control and Law Enforcement Act of 1994 proposes three new Federal Rules of Evidence-Rules 413-415 – that would liberalize the admissibility of "propensity evidence" in criminal and civil cases involving allegations of sexual assault and child molestation. This Article expresses some reservations about, and suggests some alternatives to, Proposed Rules 413-415.

Distinguishing Between Consensual And Nonconsensual Advantages Of Liability Rules, Ian Ayres, Eric Talley

Faculty Scholarship

Louis Kaplow and Steven Shavell's thoughtful reply to our recent article contains powerful insights about the relative efficiency of liability and property rules. While we are in agreement that liability rules can be more efficient than property rules when transaction costs are low, we disagree about the cause of this liability-rule advantage. Kaplow and Shaveli believe that liability rules hold only a nonconsensual advantage over property rules (i.e., liability rules tend to induce efficient nonconsensual takings). While granting this oftrecognized nonconsensual advantage, we contend that liability rules may also have a consensual advantage in low-transaction-cost settings (i.e., liability rules facilitate …

Some Problems With Public Reason In John Rawls's Political Liberalism, Kent Greenawalt

Faculty Scholarship

Political Liberalism is a major addition to the political theory of John Rawls. In many respects, it develops or alters views expressed in his famous A Theory of Justice. For changes that appeared in various articles Rawls published after the earlier book, Political Liberalism tends to offer nuances of difference. The most original chapter is about public reason, and my comments are directed to that subject, which has now become a centerpiece of Rawls's theory. I draw in Rawls's other views only as they bear on public reason.

My aim is to present some problems I see with his …

The Ironic State Of Religious Liberty In America, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

The Limited Relevance Of Plain Meaning, Stephen F. Ross

Faculty Scholarship

In this essay, the author takes the position that linguists' principal expertise - ascertaining how language is used by ordinary speakers of English - is often of little value in interpreting controversial non-criminal federal statutes. Although linguistic techniques might still aid in understanding their meaning, the author's thesis is that extrinsic evidence that is known and accessible to this small sub-community - such as legislative history, established norms of construction, and other evidence about the context in which the legislation arose - is more likely than linguistic analysis to help an outside judge shed light on what Congress meant and …

The Mythology Of Article 9, Robert E. Scott

Faculty Scholarship

Debt Collection as Rent Seeking marks an important moment in contemporary jurisprudence: the transformation of David Carlson from trenchant, fire-in-the-belly, no-holds-barred critic to abstract-modeling, implausible-assuming, game-theorizing, law and economics maven. On that basis alone, it is a great read.

Rights And Politics, Joseph Raz

Faculty Scholarship

It is an honour to join you today in celebrating Professor Jerome Hall. Professor Hall's work was ahead of its time. I did not know him, but his independence of mind and his spirited devotion to scholarship were striking in all I heard and read. Professor Hall's fame was at its height when I was beginning my research into the philosophy of law. And his name stood out as among the most distinguished American jurisprudential scholars. It stood out for his good sense, balanced judgment, and strong-minded convictions. His Foundations of Jurisprudence is thoroughly resistant to fashion. It is an …

Dolan V. City Of Tigard: Constitutional Rights As Public Goods, Thomas W. Merrill

Faculty Scholarship

When may the government require that citizens waive their constitutional rights in order to obtain benefits the government has no obligation to provide them? The answer, given by the so-called "doctrine" of unconstitutional conditions, is that sometimes the government may condition discretionary benefits on the waiver of rights, and sometimes it may not. The Supreme Court has never offered a satisfactory rationale for this doctrine, or why it "roams about constitutional law like Banquo's ghost, invoked in some cases, but not in others."

The unconstitutional conditions doctrine directs courts not to enforce certain contracts that waive constitutional rights. Perhaps it …

Standards Of Professional Conduct In Alternative Dispute Resolution Symposium, John D. Feerick, Carol Izumi, Kimberlee Kovach, Lela Love

Faculty Scholarship

ADR is unique in being interdisciplinary and interprofessional. ADR neutrals perform in a distinctive role and not as members of their own profession. The ADR process demands adherence to policies like voluntariness, respect for party autonomy, and confidentiality, which, in turn, make special ethical demands on ADR neutrals. Thus there are compelling reasons to contemplate an interdisciplinary code of conduct that addresses the professional duties and obligations of ADR neutrals. Standards of conduct for ADR has been a much discussed and debated topic over the past decade, both as to source and content. The two principal sources of standards have …

To Save A Life: Why A Rabbi And A Jewish Lawyer Must Disclose A Client Confidence Symposium: Executing The Wrong Person: The Professionals' Ethical Dilemmas, Russell G. Pearce

Faculty Scholarship

As adopted by courts and legislatures, lawyer's ethical codes have the force of law. They require a lawyer to keep information confidential unless the lawyer knows the client will commit a future crime. Jewish tradition generally forbids the disclosure of confidential information as "a terrible invasion of another person's privacy."This interdiction, rooted in the Torah's prohibition on talebearing, applies even when the information disclosed is true. The great medieval commentator, Maimonides, observed that gossip "ruins the world.” He further reproached "the evil tongue of the slander-monger who speaks disparagingly of one's fellow, even if the truth is told." Accordingly, the …

Twenty-Fifth Amendment: An Explanation And Defense, The, John D. Feerick

Faculty Scholarship

In this article, Dean Feerick reviews the history of presidential succession before the Twenty-fifth Amendment's ratification, the debate and discussion leading to the amendment's adoption, and current criticisms of the amendment from the medical and political community. In particular, Feerick addresses current suggestions for the creation of an independent medical panel to determine presidential inability. He argues that such a panel would be contrary to both the principle of separation of powers and the philosophy of the Twenty-fifth Amendment that those closest to the President ,and those accountable to the public, should be entrusted with the power to declare a …

The Ghost At The Banquet: Slavery, Federalism, And Habeas Corpus For State Prisoners, Marc Arkin

Faculty Scholarship

No abstract provided.