Digital Commons Network^™

Critical Approaches To Property Institutions, Michael A. Heller

Faculty Scholarship

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it …

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.

Issues of constitutional structure and function are among the most daunting …

The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary conceptions of racial …

(Panelist) Collision, Towage, Salvage And Limitation Of Liability, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr.

Faculty Scholarship

In two recent and highly technical decisions – Amchem Products v. Windsor and Ortiz v. Fibreboard Corp. – the Supreme Court has recognized that a serious potential for collusion exists in class actions and has outlined a concept of "class cohesion" as the rationale that legitimizes representative litigation. Although agreeing that a legitimacy principle is needed, Professor Coffee doubts that "class cohesion" can bear that weight, either as a normative theory of representation or as an economic solution for the agency cost and collective action problems that arise in representative litigation. He warns that an expansive interpretation of "class cohesion" …

Convergence And Its Critics: What Are The Preconditions To The Separation Of Ownership And Control?, John C. Coffee Jr.

Faculty Scholarship

Recent commentary has argued that deep and liquid securities markets and a dispersed shareholder base are unlikely to develop in civil law countries and transitional economies for a variety of reasons, including (1) the absence of adequate legal protections for minority shareholder, (2) the inability of dispersed shareholders to hold control or pay an equivalent control premium to that which a prospective controlling shareholder will pay and (3) the political vulnerability of dispersed shareholder ownership in left-leaning "social democracies." Nonetheless, this article finds that significant movement in the direction of dispersed ownership has occurred and is accelerating across Europe. To …

Protecting The Sacred Sites Of Indigenous People In U.S. Courts: Reconciling Native American Religion And The Right To Exclude, Kevin J. Worthen

Faculty Scholarship

The key to understanding current U. S. caselaw concerning the protection of Native American sacred sites is arguably found in the dissenting opinion of an eighteen-year old case involving not religious freedom, not sacred sites, and not cultural heritage - but the right of Indian tribes to impose severance taxes on non-tribal members who extract oil and gas from tribal lands. In Merrion v. Jicarilla Apache Tribe, Justice Stevens refused to join the majority’s conclusion that the inherent sovereignty of the Jicarilla Apache Tribe included the power to impose such a tax. In his view, a tribe’s authority to regulate …

Lawyer Role, Agency Law, And The Characterization Officer Of The Court , James A. Cohen

Faculty Scholarship

The law of agency has governed American lawyers since before the Revolution, but recent scholarship about legal ethics and professional role almost entirely ignores it. Most commentators would concede that attorneys are agents, but would quickly add that the lawyer is also an "officer of the court" who has obligations to seek justice. However, analysis of the phrase "officer of the court" reveals that it has surprisingly little content; it is mostly rhetoric, caused by self-love and self-promotion. What little content it has points to a role of the attorney as agent whose obligations to the court are almost identical …

Feminist Spiritualities: A Brief Overview, Marilyn R. Pukkila

Faculty Scholarship

A bibliographic essay on the early beginnings of feminist spirituality literature, from the 1960s to 1998.

Analisis De La Convencion De Las Naciones Unidas: Sobre Los Contratos De Compraventa Internacional De Mercaderias Y Su Trascendencia Para America Latina, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Reforming The Unbargained Contract: Avoiding Bondholder Claims For Surprise Par Calls, Robert S. Blanc, Randy D. Gordon

Faculty Scholarship

Until the last couple of decades, interest rates remained relatively stable, thus providing little incentive for corporate borrowers to seek novel ways of redeeming purportedly non-callable bonds at par. But with the advent of junk bonds and periods of great interest rate volatility, issuers have been provided with powerful incentives to explore the relatively uncharted waters of par calls. This Article examines the authority for and legality of such par calls and ultimately proposes a redefinition of the issuer-bondholder relationship. This redefinition accounts for the realities of the marketplace and should lead a return to more settled expectations in both …

The Second Revolution In Informed Consent: Comparing Physicians To Each Other, Aaron Twerski, N. B. Cohen

Faculty Scholarship

No abstract provided.

The Second Revolution In Informed Consent: Comparing Physicians To Each Other, Neil B. Cohen, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Regulatory Takings And Original Intent: The Direct, Physical Takings Thesis Goes Too Far, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Lest We Fail: The Importance Of Enforcement In International Criminal Law, Mary Margaret Penrose

Faculty Scholarship

The title of this work embodies a concern that if the International Criminal Tribunals at Nuremberg, Tokyo and the recent additions at The Hague and Arusha are used as a gauge for deterring future violence, the international community must admit failure. This statement, however, is somewhat shortsighted in that it analyzes only one mechanism for achieving peace. The Nuremberg and Tokyo precedent provided the fertile ground for adopting two modern ad hoc International Tribunals and, potentially, an international criminal court capable of providing international redress for crimes. These advancements in a unified world community were not possible shortly after the …

Sanctioning A Tyranny: The Diminishment Of Ex Parte Young, Expansion Of Hans Immunity, And Denial Of Indian Rights In Coeur D'Alene Tribe, John P. Lavelle

Faculty Scholarship

This Article analyzes a recent decision of the Supreme Court that illustrates the enormous destructive power of the Rehnquist Court's peculiar brand of anti-tribal activism, Idaho v. Coeur d'Alene Tribe. Coeur d'Alene Tribe is likely to heighten the urgency with which Eleventh Amendment scholars have called for an overruling of Hans to ameliorate the damage that Hans and its progeny already have done to the regime of federally protected rights under the Constitution, laws and treaties of the United States-a regime at the core of the Framers' vision of paramount federal law and essential to securing true liberty for all …

Distinguishing Between Cold Dark Matter And Modified Newtonian Dynamics: Predictions For The Microwave Background, Stacy S. Mcgaugh

Faculty Scholarship

Two hypothesized solutions for the mass discrepancy problem are cold dark matter and modified Newtonian dynamics. The virtues and vices of these very different hypotheses are largely disjointed, making the process of distinguishing between them very dependent on how we weigh disparate lines of evidence. One clear difference is the nature of the principal mass constituent of the universe (cold dark matter or baryons). This difference in the baryon fraction (fb, ≈ 0.1 vs. 1) should leave a distinctive signature in the spectrum of fluctuations in the cosmic microwave background. Here I discuss some of the signatures that should be …

A Partnership With The Bar: A Law Library's Experience In Taking A Leadership Role In Cle Training On Legal Research, Marsha Baum

Faculty Scholarship

UNM Law Library had a very positive experience in developing and co-sponsoring a legal research CLE with the New Mexico Bar's Center for Legal Education. We offered a two-part legal research program on print and digital resources.

Clinical Trials In Alzheimer Disease: Debate On The Use Of Placebo Controls, Peter J. Whitehouse

Faculty Scholarship

During the past 10 years, there has been a rapidly growing number of pharmaceutical industry-sponsored drug trials for treatment of Alzheimer disease (AD) and other neurodegenerative diseases. As public awareness and concerns about AD have grown, so has interest in developing drug therapies for retarding symptom progression, delaying onset, and ultimately curing the disease. Ethical debate on the use of placebo control trials in AD research has come of age in the United States with the availability of treatments approved by the Food and Drug Administration. The experts and the public agree that more effective therapies are necessary, and new …

Herding Cats: Improving Law School Teaching, Ted Occhialino, Michael M. Simon, Robert L. Fried

Faculty Scholarship

What makes a good law teacher? Is excellence in teaching largely a matter of intellectual brilliance, of superior organization and delivery of material, of friendliness and fairness to one's students? Or does it have more to do with style, with stage presence, with the ability to engage an audience in the act of reflective and spontaneous thinking?

We conducted a survey, described below, of programs to improve teaching in law schools. We found that the efforts law schools make to improve teaching are generally focused on newer faculty and take place in the emotionally charged context of tenure decisions. Few …

Team Production In Venture Capital Investing, D. Gordon Smith

Faculty Scholarship

Entrepreneurs and venture capitalists engage in team production. Inherent in team production is an incentive problem: team members have an incentive to shirk. The incentive to shirk derives from the inability to monitor team members perfectly and compensate them based on productivity. Economic models of team production teach that solutions to shirking must involve (1) a principal (2) with authority to break the budget by realigning the claims of team members through use of a penalty or a bonding arrangement (3) based only on observations of team output, not on monitoring of individual inputs. This paper analyzes the team production …

Brief Of Intervenor, Women’S Legal Education And Action Fund (Leaf), M.V.H., Laura Spitz

Faculty Scholarship

LEAF submits that the heterosexual definition of spouse ins. 29 of the Family Law Act R. S.O. 1990 c. F .3 completely denies lesbians who otherwise meet the tl:1reshoid criteria to apply for a support award. The effect of this denial violates lesbians' right to equal benefit and protection of the law contrary to s. 15(1) of the Charter, and cannot be justified under s.1 of the Charter.

Open Texture And The Possibility Of Legal Interpretation, David B. Lyons

Faculty Scholarship

This essay concerns the possibility of interpreting law. It is always possible to interpret law in the weak sense, which assigns meaning it is not assumed the law previously possessed. My concern here is interpretation in the strong sense, which, if successful, reveals meaning that lies hidden in the law. Theories of legal interpretation have recently received much theoretical attention. The received theory of law's open texture suggests that this interest is misplaced.

Nomos, Narrative, And Adjudication: Toward A Jurisgenetic Theory Of Law, Franklin G. Snyder

Faculty Scholarship

The world is bubbling over with law. As the late Robert Cover tells us in Nomos and Narrative, it springs up about us incessantly and inexorably in a spontaneous riot of luxuriant foliage. It bursts forth not from gods or kings or parliaments or courts but from the normative universe--what Cover calls the nomos --of each group within a society, a process he calls "the creation of legal meaning" or "jurisgenesis." As there are unnumbered groups in society, all with their unique nomoi, all jostling each other, the very air is alive with divergent legal meanings on every …

The Molecular Ism In Low Surface Brightness Disk Galaxies, J. Christopher Mihos, Stacy S. Mcgaugh

Faculty Scholarship

We present models for the interstellar medium in disk galaxies. In particular, we investigate whether the ISM in low surface brightness galaxies can support a significant fraction of molecular gas given their low metallicity and surface density. It is found that the abundance and line brightness of CO in LSB galaxies is small and typically below current observational limits. Still, depending on physical details of the ISM, the fraction of gas in the form of molecular hydrogen can be significant in the inner few kilo-parsecs of a low surface brightness galaxy. This molecular gas would be at temperatures of ∼ …

The General Allotment Act "Eligibility" Hoax: Distortions Of Law, Policy, And History In Derogation Of Indian Tribes, John P. Lavelle

Faculty Scholarship

A review of the essay, "Federal Indian Identification Policy: A Usurption of Indigenous Sovereignty in Native North America," in the collection of essays, The State of Native America, by M. Annette Jaimes.

Internationalizing The Law Of Secured Credit: Perspectives From The U.S. Experience, Neil B. Cohen

Faculty Scholarship

No abstract provided.

The Literature Of Contemporary Witchcraft: Formalists, Femininsts, And Free Spirits, Marilyn R. Pukkila

Faculty Scholarship

A bibliographic essay on the writings of contemporary Witchcraft, from the late 1890s to 1998.

The Representational Dialectic (With Iilustrations From Obscenity, Forfeiture, And Accident Law), Anita Bernstein

Faculty Scholarship

No abstract provided.

Translating Legal Terms In Context, Antoinette M. Sedillo Lopez

Faculty Scholarship

This article reviews a number of Spanish/English legal dictionaries, evaluating the relative merits and features of each. Translating legal terms requires an understanding of both the legal context in which the term is used and the legal context in which the translation is intended. Thus, this review of legal dictionaries concentrates on evaluating the authors'/editors' understanding of how the terms are used in the two legal cultures, as well as in two different languages.