Digital Commons Network^™

Hate Crimes, Homosexuals, And The Constitution, Anthony S. Winer

Faculty Scholarship

This Article begins with an analysis of certain features of the Equal Protection Clause of the Fourteenth Amendment and demonstrates that this clause establishes a fundamental right to the equal benefit of laws protecting personal security. Laws protecting personal security must be applied evenhandedly. Any discriminatory application of such laws is presumptively invalid under the Equal Protection Clause. This Article next shows that gay men and lesbians are among the most common victims of hate crime, that hate crimes against gays and lesbians are significant, persistent and widespread, and that gays and lesbians have a substantial stake in the manner …

What Happens When Mediation Is Institutionalized?: To The Parties, Practitioners And Host Institutions, Sharon Press

Faculty Scholarship

The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at the 1994 AALS Conference, on the institutionalization of mediation – through court-connected programs and otherwise. The topic is an important one, because this phenomenon has become increasingly common. Moreover, the topic seemed especially appropriate for the 1994 program, since Florida – the host state for the conference – was one of the first states to adopt a comprehensive statute providing for court-ordered mediation (at the trial judge’s option) in civil disputes of all kinds. The move toward institutionalizing mediation has raised many questions, and …

Madisonian Balancing: A Theory Of Constitutional Adjudication, David L. Faigman

Faculty Scholarship

No abstract provided.

Reflections On Judge Weinstein's Ethical Dilemmas In Mass Tort Litigation, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Etiquette Tips Some Implications Of 'Process Federalism', Calvin R. Massey

Faculty Scholarship

No abstract provided.

Rule 11 Entering A New Era, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Sentencing: Capital Punishment, Jodi L. Short, Mark D. Spoto

Faculty Scholarship

No abstract provided.

Below-Market Interest On Loans And Installment Sales: Tax Consequences, William T. Hutton

Faculty Scholarship

No abstract provided.

A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly

Faculty Scholarship

This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further …

Cartesian Logic And Frontier Politics: French And American Concepts Of Arbitrability, Thomas E. Carbonneau, Francois Janson

Faculty Scholarship

This comparative essay represents an attempt to introduce a measure of counterpoise in a growing and much-heralded development in the world law of arbitration. Recent decisional law in the United States, France, and other countries have challenged the strategic significance of the concept of arbitrability in the legal regulation of arbitration. The essay seeks, first, to clarify the function of arbitrability in the law of arbitration and, second, to argue against its judicial deconstruction in either the international or domestic context. The key objective of the analysis is to demonstrate the vital role of demarcation that arbitrability plays between state …

Small Numbers, Big Problems, Black Men, And The Supreme Court: A Reform Program For Title Vii After Hicks, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

The Unnatural Expansion Of Trademark Rights: Is A Federal Dilution Statute Necessary?, Kenneth L. Port

Faculty Scholarship

This article is a systematic review of proposed section 43(c ). Proposed section 43(c ) would create a federal cause of action for trademark dilution and would grossly expand trademark rights. The article reviews both the practical implications and theoretical underpinnings of the dilution concept. Part II describes the basic origins and history of the dilution debate. Part IV(A) presents the practical problems that proposed section 43(c ) raises. Part IV(B) critiques some of the more popular theoretical justifications that are typically used to support granting intellectual property rights and concludes that no satisfactory theoretical justification exists to warrant an …

Law And Language(S): Image, Integration And Innovation, Margaret E. Montoya

Faculty Scholarship

Examining the complex relationship between law and language enhances our understanding of the marginalization and subordination of linguistic Outsiders. This nexus between law and language has many manifestations. In this essay I discuss the biases about language that constrain traditional legal discourse while I explore strategies for its reframing by using the languages of Outsiders. Succinctly stated, this essay posits that traditional language norms create images or maintain stereotypes that stultify public discourse as well as impose cultural integration and linguistic assimilation with destructive consequences. The essay proposes that linguistic norms in law schools can be refashioned through pedagogical innovations …

Making A Wrong Thing Right: Ending The "Spread" Of Reclamation Project Water, Reed D. Benson, Kimberley J. Priestley

Faculty Scholarship

In the Pacific Northwest, especially east of the Cascade Range, water is a limited and precious resource. Diversions of water for out-of-stream uses regularly dry up certain reaches of many rivers and streams. Such diversions provide water for municipalities, industrial users, and farmers who irrigate millions of acres in Idaho, Oregon, and Washington. Diversions also harm fish and wildlife (including threatened and endangered salmon stocks), impair recreational uses of affected waterways, and degrade water quality.

Multinational Corporations, Private Codes, And Technology Transfer For Sustainable Development, Michael S. Baram

Faculty Scholarship

Sustainable development requires the application of advanced technological expertise in the activities of multinational corporations. Private codes of environmental conduct are proliferating throughout the developed world, ensuring the application of the required technological expertise. However, multinational corporations generally do not follow these voluntary codes in developing nations. Several strategies are available to extend the effective application of private codes in the developing world. Reliance on private codes of environmental conduct enhanced by supportive strategies provides a pragmatic policy option for sustainable development.

Outcomes Assessment In Health Care Reform: Promise And Limitations, Wendy K. Mariner

Faculty Scholarship

If the fundamental goals of the health care reform effort are to ensure universal access to an acceptable quality of health care at an affordable cost, then the threshold question for reform is: What health care services should be provided in an efficient, equitable system?

Answering this question requires weighing a complex mix of medical and social policy factors, a process not attempted in this article. But the starting point for that process should be determining what health care services “work” and what they cost. Outcomes assessment holds considerable promise in finding answers to these subsidiary questions, because it is …

Virtual Reality, Appropriation, And Property Rights In Art: A Roundtable Discussion, Wendy J. Gordon

Faculty Scholarship

Virtual reality is user-interfacing technology that tracks the kinetic movement, changes, and reactions in the body of an operator using devices that provide comprehensive and exclusive sensory excitation (in the sense that perceptual input from outside the system is excluded as much as possible). The technology simultaneously allows information and commands to be input back into the system as effortlessly as possible. Virtual reality can be thought of as total sensory immersion in the input and output of a computer system: everything one sees, feels, and hears comes from the computer, and everything the user does goes back in. It's …

Truth In Savings And The Failure Of Legislative Methodology, Eric J. Gouvin

Faculty Scholarship

The federal Truth in Savings Act (Truth in Savings) provides one example of failed legislative problem solving. On its face, Truth in Savings is a congressional attempt to solve constituents' problems. The statute, however, appears unlikely to resolve the issues presented to Congress and may even create new and unintended problems that will make matters worse. Truth in Savings, like many other legislative efforts, fails adequately to address constituents' problems because the methodology employed by legislative drafters suffers from a fundamental flaw - it has no built-in mechanism to define rigorously the problem being addressed. Without first identifying the problem, …

Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that …

Must Carry And The Courts: Bleak House, The Sequel, Nick Allard

Faculty Scholarship

No abstract provided.

A Sheep In Wolf's Clothing: Territorialism In The Guise Of Interest Analysis In Cooney V. Osgood Machinery, Inc, Aaron Twerski

Faculty Scholarship

No abstract provided.

The Rise And Rise Of The Administrative State, Gary S. Lawson

Faculty Scholarship

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution. The original New Dealers were aware, at least to some degree, that their vision of the national government's proper role and structure could not be squared with the written Constitution: The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers. Faced with a choice between the administrative state and the Constitution, the architects …

The Politics Of Article 9, Robert E. Scott

Faculty Scholarship

In the ongoing debate concerning the efficiency and social value of Article 9 of the Uniform Commercial Code, two points are beyond dispute. First, asset-based financing has undergone an enormous transformation since the enactment of Article 9. The most vivid illustration of this is the dramatic increase in the number and size of firms that rely on secured credit as their principal means of financing both ongoing operations and growth opportunities. Previously, with a few exceptions (such as factoring and trust receipts), secured financing principally had served second-class markets as the "poor man's" means of obtaining credit. Now, it has …

Panel Iii: International Law, Global Environmentalism, And The Future Of American Environmental Policy, Thomas W. Merrill

Faculty Scholarship

From an American perspective, environmental law has undergone two bouts of centralization in the past three decades. Round one occurred in the 1970's, as Congress federalized vast areas of environmental law that had previously been the province of state and local governments. Round two, which is still in an incipient phase, represents the effort to internationalize environmental law.

The question I would like to address is what can we learn from round one about what is likely to happen in round two. My answer, in a nutshell, is that the primary driving force behind the federalization of environmental law in …

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Daniel C. Richman, Bruce A. Green

Faculty Scholarship

As a general rule, criminal defendants whose cases made it to the Supreme Court between 1967 and 1991 must have thought that, as long as Justice Thurgood Marshall occupied one of the nine seats, they had one vote for sure. And Justice Marshall rarely disappointed them – certainly not in cases of any broad constitutional significance. From his votes and opinions, particularly his dissents, many were quick to conclude that the Justice was another of those "bleeding heart liberals," hostile to the mission of law enforcement officers and ready to overlook the gravity of the crimes of which the defendants …

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Faculty Scholarship

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

Sameness And Subordination: The Dangers Of A Universal Solution, Susan P. Sturm

Faculty Scholarship

Judges, Behavioral Scientists, and the Demands of Humanity grapples with one of the most pressing and difficult challenges of our time – how to overcome deep and enduring conflicts that currently divide our community. Professor Burt offers insights into the importance of empathy and identification in breaking down the categories that we use to distance ourselves from the humanity of others and to justify oppression of those we define as outsiders. His solution is hopeful, almost noble. He exhorts judges, social scientists, and by implication, all of us to be our best selves, to focus on how we are part …

Thinking To Be Paid Versus Being Paid To Think, Merritt B. Fox

Faculty Scholarship

In the first chapter of The Economic Structure of Corporate Law, Frank Easterbrook and Daniel Fischel make an arresting statement:

... [P]eople who are backing their beliefs with cash are correct; they have every reason to avoid mistakes, while critics (be they academics or regulators) are rewarded for novel rather than accurate beliefs. Market professionals who estimate these things wrongly suffer directly; academics and regulators who estimate wrongly do not pay a similar penalty. Persons who wager with their own money may be wrong, but they are less likely to be wrong than are academics and regulators, who are wagering …

Shouting Down The Voice Of The People: Political Parties, Powerful Pac's And Concerns About Corruption, Clarisa Long

Faculty Scholarship

The Federal Election Campaign Act limits the amount of financial support that political parties may give to candidates for federal office. Clarisa Long argues that these restrictions violate political parties' First Amendment rights of speech and association. Because the flow of money in the political process is a proxy for speech, the First Amendment requires that political actors have access to at least one unrestricted avenue of communication. While individuals' and PACs' First Amendment rights are protected because they may make unrestricted independent expenditures, parties do not have this opportunity. Courts have failed to protect party speech, rationalizing that the …

Democracy And Domination In The Law Of Workplace Cooperation: From Bureaucratic To Flexible Production, Mark Barenberg

Faculty Scholarship

In May of 1993, President Clinton's Commission for the Future of Worker-Management Relations began its investigation of whether a major overhaul of United States labor law is necessary to encourage high-performance workplaces and labor-management cooperation. Even if its recommendations, due in November 1994, do not yield immediate congressional fruit, the Commission's work is likely to influence the study and politics of labor law reform for some time to come. The Commission is chaired by John Dunlop, the eminent labor-relations specialist and former Secretary of Labor. Its membership includes some of the nation's foremost academic and political proponents of far-reaching labor …