Digital Commons Network^™

The Role Of The United States Senate Concerning "Self-Executing" And "Non-Self-Executing Treaties", Lori Fisler Damrosch

Faculty Scholarship

This essay concerns a pattern in treaty actions of the U.S. Senate which tends to weaken the domestic legal effect of treaties. Under this pattern, the Senate qualifies its consent to U.S. ratification of the treaty with a declaration or other condition to the effect that the treaty shall be non-self-executing, or otherwise expresses its intention that the treaty shall not be used as a direct source of law in U.S. courts. Such qualifications, referred to hereinafter as "non-self-executing declarations," give rise to important questions about the place of the affected treaties within the fabric of U.S. law, especially in …

Constitutional Politics In Poland: A Report On The Constitutional Committee Of The Polish Parliament, Andrzej Rapaczynski

Faculty Scholarship

This Article is neither a comprehensive historical account of the work of the Constitutional Committee of the Polish Parliament nor a theoretical synthesis of recent constitutional developments in Poland. Rather, it is a mixture of theory, anecdote, and personal reminiscence that I feel at this point most capable of providing. As will be seen, the work on the new Polish constitution has in some ways been overtaken by events that unfortunately have always lurked in the background of the drafters' work and influenced their decisions. In fact, it is not clear that Poland will enact anything resembling the draft prepared …

Lawyer Advice And Client Autonomy: Mrs. Jones's Case, William H. Simon

Faculty Scholarship

In one influential view, the lawyer's most basic function is to enhance the autonomy of the client. The lawyer does this by providing the information that maximizes the client's understanding of his situation and minimizes the influence of the lawyer's personal views.

This autonomy or "informed consent" view is often contrasted with a paternalist or "best interest" view most strongly associated with official decisions about children and the mentally disabled. Here the professional's role is to make decisions for the client based on the professional's view of the client's interests.

I am going to argue against the autonomy view that …

Reinventing The Outside Director: An Agenda For Institutional Investors, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Managerialist rhetoric puts the institutional investor between a rock and a hard place. The institutional investor is depicted as a paper colossus, alternatively greedy and mindless, but in all events a less important corporate constituency than that other kind of investor, the "real" shareholder. The unspoken corollary is that, regardless of the institution's investment strategy, its interests may appropriately be ignored.

An institution that trades stock frequently is considered a short-term shareholder without a stake in the future of the corporation. According to the familiar argument, the short-term shareholder has no more legitimate claim on management's attention than does a …

Voice, Not Choice, James S. Liebman

Faculty Scholarship

In John Chubb and Terry Moe's book, choice is hot; voice is not. As influential as their book has become in current policy debates, however, its data and reasoning may support policies the reverse of those that the authors and their "New Paradigm" disciples propose. In this review, voice is hot; choice is not.

Assumption Of Risk After Comparative Negligence: Integrating Contract Theory Into Tort Doctrine, John L. Diamond

Faculty Scholarship

No abstract provided.

Uncitral And The Hamburg Rules -- The Risk Allocation Problem In Maritime Transport Of Goods, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Hare And Hounds: The Fugitive Defendant's Constitutional Right To Be Pursued, Bruce A. Green

Faculty Scholarship

No abstract provided.

The Promissory Basis Of Section 90, Edward Yorio, Steve Thel

Faculty Scholarship

No abstract provided.

Why Creditors File So Few Involuntary Petitions And Why The Number Is Not Too Small, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Wanted: A Federal Standard For Evaluationg The Adequate State Forum , Maria Marcus

Faculty Scholarship

This Article argues that the federal judiciary should upgrade its present scrutiny of state forum adequacy in conformity with constitutional and congressional directives. Fortunately, a standard for such heightened scrutiny already exists in the Supreme Court's own jurisprudence.

Power Not Reason: Justice Marshall's Valedictory And The Fourth Amendment In The Supreme Court's 1990 Term , Bruce A. Green

Faculty Scholarship

In its 1990 Term, the United States Supreme Court heard five cases involving the Fourth Amendment. In this article, Professor Bruce Green analyzes these five search-and-seizure decisions in light of Justice Marshall's criticism that '[Plower, not reason, is the new currency of this Court's decision-making." He examines the various considerations the Court advances in its Fourth Amendment analysis-interpretive principle, policy, and precedent--and discovers inconsistencies in the importance assigned to each of these considerations in a series of cases decided very close together by virtually the same Justices. Each approach controlled, Professor Green argues, only when it could be said to …

Adjudicative Retroactivity In Administrative Law , Abner S. Greene

Faculty Scholarship

Although decided forty-five years ago, SEC v Cbenery Corp. ("Cbenery II") remains the Supreme Court's leading statement on the issue of retroactivity in administrative adjudication. According to Chenery II, administrative agencies may give meaning to statutory terms through adjudication, even if the rules applied in a particular adjudication have not been previously announced. The Court acknowledged that "announcing and applying a new standard of conduct" in an adjudicative proceeding would have a retroactive effect, but concluded that the agency's duty to be faithful to the "statutory design or to legal and equitable principles" may override concerns about retroactivity. The Court …

Easements In The Wake Of Catastrophe: The Legal Fallout, William T. Hutton, Walter T. Moore

Faculty Scholarship

No abstract provided.

Principled Decision Making And The Proper Role Of Federal Appellate Courts: The Mixed Questions Conflict, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Devolution Or Disunion: The Constitution After Meech Lake, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Gender Wars: Selfless Women In The Republic Of Choice, Joan C. Williams

Faculty Scholarship

No abstract provided.

"Normative Constitutional Fact-Finding": Exploring The Empirical Component Of Constitutional Interpretation, David L. Faigman

Faculty Scholarship

No abstract provided.

Judicial Discretion In Sentencing, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Gestational Surrogacy And The Health Care Provider: Put Part Of The "Ivf Genie" Back Into The Bottle, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Rethinking "Original Intent", David B. Lyons

Faculty Scholarship

Although Dred Scott v. Sandford is one of the Supreme Court's most controversial decisions, it is not often taught or read. But its approach to constitutional interpretation is by no means outdated, and its historical importance has not diminished. So it seems a good example to consider.

Rent Appropriation And The Labor Law Doctrine Of Successorship, Keith N. Hylton

Faculty Scholarship

When there is a change of corporate control in a business enterprise a question arises as to whether the new employer should be bound by the predecessor's collective bargaining relationship with the union representing the predecessor's employees. This is known as the successorship problem in labor law.' Successorship doctrine is complex and controversial. Several commentators have attempted to reconcile Supreme Court decisions and to ascertain the assumptions underlying the Court's opinions in this area.2 This Article does not attempt to do this, although paradoxically, the arguments presented may lead to reconciliation of many of the Supreme Court's decisions relating to …

Book Review - Reviewing S. Prakash Sinha, What Is Law? (1989), Stephen R. Alton

Faculty Scholarship

Book Review Extract:

The title of S.P. Sinha's book, What Is Law?, is somewhat deceptive, for the author ambitiously tries to do more than merely define the concept of law in well under 300 pages. After the introductory historical and philosophical overview of his initial chapter, Sinha uses the balance of his book to summarize the major theories of law, including how law arises, how it is applied, and why it is important in society. The work is less of an original attempt by its writer to answer the question posed by the title than it is an effort to …

Professional Decisions And Ethical Values In Medical And Law Students, Robert L. Schwartz, Agnes G. Rezler, Pamela Lambert, S. Scott Obenshain, Joan Mciver Gibson, David A. Bennahum

Faculty Scholarship

The purpose of this project is to evaluate and compare the values used by medical and law students when dealing with ethical dilemmas in the professional practice of law and medicine. It is assumed that conflict between doctors and lawyers often arises out of the different values that members of each profession apply to similar dilemmas.

Radiative Kaon Capture On Deuterium And The Λn Scattering Lengths, William J. Fickinger, D. K. Robinson

Faculty Scholarship

The photon spectrum from K-d→Λnγ at rest has been measured for the first time. We obtained the branching ratio, in the end-point region, of (1.89±0.12±0.28)×10-3 where the first error is statistical and the second is systematic. We have found that the shape of the photon energy spectrum is consistent with the distribution calculated by Workman and Fearing with Λn scattering lengths and effective ranges predicted by the Nijmegen group.

Territorial Governments And The Limits Of Formalism, Gary S. Lawson

Faculty Scholarship

For much of this nation's history, the governance of American territories, such as the island of Guam, was one of the most significant and oft-litigated problems of American constitutional law. In modern times, however, issues of territorial governance have been reduced to the status of constitutional arcana. Professor Lawson maintains that this frequently neglected problem of territorial governance is an ideal context in which to conduct the resurgent modern debate concerning separation of powers theory. Accordingly, Professor Lawson undertakes a formalist analysis of the principal institutions of American territorial governance, finding all of them incompatible with a formalist understanding of …

The Law And Economics Of Organ Procurement, Keith N. Hylton

Faculty Scholarship

This paper presents an economic analysis of the organ procurement system in the U.S. and examines proposals to alleviate the shortage of transplantable organs. The paper's principal conclusions are: (1) Although non-market solutions deserve the highest priority, demand increases fueled by improvements in transplant technology will probably make some market-based solution necessary in the future. (2) Quality deterioration and coercion will not necessarily be worrisome problems under a market-based procurement system.

Doctrinal Collapse In Products Liability: The Empty Shell Of Failure To Warn, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Real Property Survey, Ronald B. Brown

Faculty Scholarship

No abstract provided.

The Asymmetrical Conditions Of Legal Responsibility In The Marketplace, Bailey Kuklin

Faculty Scholarship

No abstract provided.