Digital Commons Network^™

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

Faculty Scholarship

No abstract provided.

Domestic Violence And Tribal Protection Of Indigenous Women In The United States, Christine Zuni Cruz, Gloria Valencia-Weber

Faculty Scholarship

The purpose of this article is to discuss openly the issue of the physical abuse of American Indian women in a manner that reflects the authors' knowledge of how American Indian people live. This article confronts presumptions or pre-existing notions about the indigenous people of the United States that pervade popular culture. Initially, this article will examine the sovereign nature of the tribal nations within the parameters of both international law and United States jurisprudence. This article will also address the way in which some international instruments relate to the rights and protection of indigenous people, including specific provisions for …

Book Review: Rethinking The American Constitutional Tradition: National Dimensions In The Formulation Of State Constitutions, Christian G. Fritz

Faculty Scholarship

Founding the Far West is an important scholarly contribution to nineteenth-century American history. However, its analysis of how California, Oregon, and Nevada became states identifies a dynamic that fails to capture the tradition of American constitution-making. Only when state constitution-making is more widely studied can the dimensions of that tradition be understood in ways that will integrate the meaning of the state constitutional experience. So too, the recent interest in state constitutions as documents having an independent source of constitutional authority may curb the ingrained habit of studying American constitutional law from "the top down" and encourage scholars to bring …

Indian Culture And Spirituality: Some Reflections On The Shaping And Sharing Of Cultural Values, Sherri L. Burr

Faculty Scholarship

This article provides an introduction to the unique conflicts over American Indian cultural objects. There is clearly an internal appreciation of Indian culture by Indians, as well as an external appreciation of Indian culture by others either for personal use or to be display in homes or museums. Through this exchange, the creator of the objects shares his or her heritage with the recipient. By sharing art and cultural items, either voluntarily or by force, a learning process ensues about the objects and about those who created them. In considering ownership of Native American cultural objects, the law has not …

Paul Touvier And The Crime Against Humanity, Michael E. Tigar, Susan C. Casey, Isabelle Giordani, Sivakumaren Mardemootoo

Faculty Scholarship

No abstract provided.

Of Communism, Treason, And Addiction: An Evaluation Of Novel Challenges To The Military's Anti-Gay Policy, Taylor Flynn

Faculty Scholarship

A recent wave of decisions have held unconstitutional the exclusion of lesbians, bisexuals,and gay men in the military when the only evidence of same-sex "conduct" is the servicemember's self-identification as gay. These courts, as well as some pro-equality commentators, have drawn upon three criminal law models by characterizing same-sex orientation as akin to a status and a form of political expression.

The first model relies upon Robinson v. California and Powell v. Texas, in which the Supreme Court announced the constitutional impermissibility of criminalizing the status of addiction to narcotics and alcohol. In the context of military litigation, this model …

Judicial Federalism: A Proposal To Amend The Multidistrict Litigation Statute To Permit Discovery Coordination Of Large-Scale Litigation Pending In State And Federal Courts, William W. Schwarzer, Alan Hirsch, Edward Sussman

Faculty Scholarship

No abstract provided.

Girls And The Getaway: Cars, Culture, And The Predicament Of Gendered Space, Carol Sanger

Faculty Scholarship

What does law tell us about our relations to material things? Property theorists maintain that there are no legal relations between persons and things. Things can be owned, transferred, bequeathed, assigned, repossessed, and so on, but such arrangements really describe relationships among different persons with regard to the object rather than relationships between persons and things.

Yet the quality or shape of the legal relations among persons often depends on the cultural meaning of the thing in question, a meaning (or meanings) that exists, in some form anyway, prior to or independent of, legal concepts traditionally attached to things such …

Scenes From The Continuum: Sustaining The Maccrate Report's Vision Of Legal Education Into The Twenty-First Century, J. Michael Norwood

Faculty Scholarship

In 1992, the ABA Task Force on Legal Education and the Profession, under the leadership of its Chairman Robert MacCrate, came out with what has become popularly known as the MacCrate Report. This epochal document has redefined the scope of the current debate on how law school should be taught and what values should make up the core of legal education. In this article, Professor Norwood provides background on the Report and an overview of its contents. He then forecasts the effect it is likely to have in the coming years, noting impediments likely to arise from law schools reluctant …

Federal Environmental Citizen Provisions: Obstacles And Incentives On The Road To Environmental Justice, Eileen Gauna

Faculty Scholarship

This article attempts to examine the special problems that community-based groups in low income and minority communities might encounter in prosecuting citizen suits under highly technical environmental statutes. To set the context for this inquiry, part II of this article describes the environmental justice movement and investigates the charge that communities of color are disproportionately and unjustly burdened with environmental hazards. Part II also explores the differences in perspective that underlie much of the conflict among environmental justice activists, mainstream environmental organizations, and EPA. Part II concludes with a look at social forces that have contributed to environmental inequities and …

Linguistics And Legal Epistemology: Why The Law Pays Less Attention To Linguists Than It Should, Gary S. Lawson

Faculty Scholarship

Law and linguistics ought to be natural partners. Modem statutory and constitutional interpretation increasingly focuses on the generally accepted public meaning of legal language. Even persons who do not believe (as I do) that some form of public understanding of the relevant text is the end all, if not quite the be-all, of such interpretation are likely to regard the public understanding of statutory language as at least one relevant factor in legal interpretation. And who better than linguists to inform the law about the true facts regarding public usage and understanding of legal language?

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 …

Fiduciary Duties As Default Rules, Tamar Frankel

Faculty Scholarship

This Article consists of four parts. Part I draws a profile of fiduciary relationships. It also explains the different responses of fiduciary and contract rules to the different problems that the relationships pose regarding: (1) the right of one party to rely on the other and the specific duties of loyalty and care, which mirror these rights; and (2) the events that trigger the application of fiduciary rules. Finally, it compares contract with fiduciary rules. The reasons for the existence of fiduciary rules suggest that, when in conflict, they trump the rules governing other parallel relationships, including contracts.

Part II …

Drawing The Boundary Between Copyright And Contract: Copyright Preemption Of Software License Terms, Maureen A. O'Rourke

Faculty Scholarship

The Copyright Act of 19761 (the "Act") sought to clarify the boundary between federal and state enforcement of proprietary rights in works of authorship by specifically addressing federal preemption of state law causes of action in § 301 of the Act. Unfortunately, § 301 is not a model of clarity, and its legislative history is also cloudy. Consequently, the courts have had some difficulty in formulating consistent decisional guidelines in preemption cases. This difficulty has perhaps been most evident in cases in which the particular preemption issue is based not on a state statute but on state enforcement of private …

Illusion And Reality In International Forum Selection, William W. Park

Faculty Scholarship

The text of a legal rule is often less important than the context of its interpretation and application. If a dispute between an American buyer and a French seller were to come before a French court, the buyer might be apprehensive not so much from any fearful oddity of French law, but because the adjudicatory procedure arguably gave the French side a "home court advantage." In some other countries, the integrity or independence of the judiciary may also be a matter of concern. In an international transaction, the absence of any reasonably neutral forum with compulsory jurisdiction makes the consequences …

Inviolability And Privacy: The Castle, The Sanctuary, And The Body, Linda C. Mcclain

Faculty Scholarship

This article explores the idea and imagery of inviolability. I use a trilogy of terms-the castle, the sanctuary, and the body-to illuminate different loci of inviolability and to show how notions of sacredness and sanctity undergird the legal protection of inviolability. These images, familiar from privacy jurisprudence, provide a useful lens through which to examine the association between inviolability and gender. Familiar feminist critiques suggest that concepts such as privacy have served to deny, rather than to secure, inviolability for women and women's bodies. I explore the interplay of inviolability and privacy in some prominent feminist accounts of sexuality, and …

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, …

Constitutional Control Over War Powers: A Common Core Of Accountability In Democratic Societies?, Lori Fisler Damrosch

Faculty Scholarship

My first opportunity to read John Hart Ely's ideas on war powers came in 1988, when he published the antecedent of one chapter of War and Responsibility as an article in the Columbia Law Review titled Suppose Congress Wanted a War Powers Act that Worked. The punctuation – without a question mark – makes an important point: The verb "suppose" invites us not to speculate about a counterfactual hypothetical, but rather to assume that Congress must want its own creation to work. Professor Ely's project was to show Congress how to fix it.

But it was already evident in 1988, …

Abuse Of Rights: A Pervasive Legal Concept, Joseph Perillo

Faculty Scholarship

No abstract provided.

Admiralty Law Of Arthur Browne, Joseph Sweeney

Faculty Scholarship

No abstract provided.

History 'Lite' In Modern American Constitutionalism, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

We Make The Road By Walking: Immigrant Workers, The Workplace Project, And The Struggle For Social Change Symposium: Economic Justice In America's Citie: Visions And Revisions Of A Movement, Jennifer Gordon

Faculty Scholarship

This Article addresses the problems faced by immigrant workers on Long Island. Part I briefly examines the transition on Long Island from an economy based on manufacturing to one based on services, as well as the growth of the underground economy. Part II addresses the failure of government agencies, legal services centers, and unions to confront the problems faced by immigrant workers in this period of economic transition. Part III presents the Workplace Project model as an alternative to those institutions. Part IV offers a critique of the Project, focusing on the conflict between providing individual legal representation and organizing …

Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve The Conduct And Reputation Of The Bar, The, Russell G. Pearce

Faculty Scholarship

The Article explains how the Professionalism Paradigm distinguishes between self-interested businesspersons and altruistic professionals who place the public good above their own interests and those of their clients. The legal profession has used this Business-Profession dichotomy to obtain control of the delivery legal services, including a legislative monopoly on the practice of law. Today, the Professionalism Paradigm faces a crisis as leading lawyers, judges, and scholars complain that law has become a business and is no longer a profession. The Article “identifies this shift as a time for hope rather than as a cause for despair. Applying Thomas S. Kuhn's …

Restrictions On Non-Citizens' Access To Public Benefits: Flawed Premise, Unnecessary Response, Richard A. Boswell

Faculty Scholarship

No abstract provided.

Greater Representation For California Consumers–Fluid Recovery, Consumer Trust Funds, And Representative Actions, James R. Mccall, Patricia Sturdevant, Laura Kaplan, Gail Hillebrand

Faculty Scholarship

No abstract provided.

Truth As Justice Investigatory Commissions In Latin America, Naomi Roht-Arriaza, Margaret Popkin

Faculty Scholarship

No abstract provided.

Unconscionability In California: A Need For Restraint And Consistency, H.G. Prince

Faculty Scholarship

No abstract provided.

Cooperating Clients, Daniel Richman

Faculty Scholarship

Indicted on serious narcotics charges, Jose Lopez retained Barry Tarlow to “vigorously defend and try the case.” Tarlow was up to the task but warned Lopez that it was “his general policy not to represent clients in negotiations with the government concerning cooperation,” and that he did not plan to make any exception for Lopez. As Tarlow later explained, he found such negotiations “personally[,] morally and ethically offensive.” This arrangement suited Lopez just fine, until he wavered in his resolution. Encouraged by a co-defendant, worried about his children, and hoping to obtain an early release from prison …

Integrating The "Underclass": Confronting America's Enduring Apartheid, Olatunde C.A. Johnson

Faculty Scholarship

Douglas Massey and Nancy Denton's American Apartheid argues that housing integration has inappropriately disappeared from the national agenda and is critical to remedying the problems of the so-called "underclass." Reviewer Olati Johnson praises the authors' refusal to dichotomize race and class and the roles both play in creating and maintaining housing segregation. However, she argues, Massey and Denton fail to examine critically either the concept of the underclass or the integration ideology they espouse. Specifically, she contends, the authors fail to confront the limits of integration strategies in providing affordable housing or combating the problem of tokenism. Massey and Denton …

The "Language Of Law" And "More Probable Than Not": Some Brief Thoughts, Kent Greenawalt

Faculty Scholarship

By far the most testy moments of the conference arose out of the following problem. The Supreme Court had interpreted "knowingly" in a criminal statute regulating interstate commerce of child pornography to cover the age of participants, even though the placement of knowingly" in the statutory provision would, according to standard usages of English grammar, lead to its not being applied to that element of the crime. All participants at our conference fairly quickly acknowledged the following two truths: (1) the Court's construction did not fit ordinary English grammar, and (2) there might be appropriate (legal) reasons why statutory construction …