Digital Commons Network^™

Shell Games: The Continuing Legacy Of Rights To Minerals And Water On Spanish And Mexican Land Grants In The Southwest, G. Emlen Hall

Faculty Scholarship

This paper explores generally this paradoxical approach to mineral and water rights on confirmed Spanish and Mexican land grants. The analysis treats mineral and water rights separately. For each critical land grant resource, the paper explicates basic law of the Southwest's antecedent sovereigns. It then suggests how those Spanish and Mexican rights fit within the 1848 Treaty of Guadalupe Hidalgo guarantee of protection of "property rights." It proceeds to analyze how the United States implemented those guarantees, suggesting that the treatment of the succeeding sovereign owed more to its own law than it did to the law of the antecedent …

Mum's The Word: The Supreme Court And Family Planning, Wendy K. Mariner

Faculty Scholarship

On May 23, 1991, the US Supreme Court upheld federal regulations that prohibit federally funded family planning programs from counseling about or referring for abortion. As a result, government benefits may now entail substantial costs. The regulations changed the nature of government-assisted family planning from comprehensive care and counseling to limited services and government-prescribed information. The reasoning in Rust v Sullivan allows government to limit freedom of speech in federally funded programs. The decision may have been influenced by antiabortion sentiment, but it does not affect the legality of abortion. Instead, it sets a precedent for government control of whether …

On Owning Information: Intellectual Property And The Restitutionary Impulse, Wendy J. Gordon

Faculty Scholarship

Every day someone invests time, labor, or money in creating a valuable intangible. Someone collects information, creates an idea, designs a boat hull, writes a book, or comes up with a new way to market a product that someone else developed. Judicial treatment of these and other cognate occurrences has shifted dramatically in recent years.

Ignoring History: The Liability Of Ships' Masters, Innkeepers And Stablekeepers Under Roman Law, David S. Bogen

Faculty Scholarship

No abstract provided.

Teaching Laws With Flaws: Adopting A Pluralistic Approach To Torts, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Recovery By Stepchildren In Wrongful Death Actions, Robyn L Meadows

Faculty Scholarship

No abstract provided.

Two Legal Constructs Of Motherhood: "Protective" Legislation In Mexico And The United States, Antoinette M. Sedillo Lopez

Faculty Scholarship

The theme of this symposium, "Reconstructing Motherhood," requires an examination of laws designed to further traditional motherhood roles. Societal constructs of motherhood-women as child bearers and nurturers-have profoundly affected women's involvement in paid employment. Conversely, women's participation in paid employment affects how women experience motherhood. For example, a woman who does not work outside the home has a dramatically different mothering experience than a woman who works outside the home and leaves her children with a day-care provider. The legal system can affect the relationship between motherhood and employment opportunities for women by means of employment laws and policies. Sometimes …

Decisions By And For People With Mental Retardation: Balancing Considerations Of Autonomy And Protection, James W. Ellis

Faculty Scholarship

This Article will attempt to analyze some of the considerations that should inform enlightened and compassionate public policy in this area. Section I will describe briefly the definition of mental retardation and common attributes of people who have the disability and the social and political world in which they live within our society. Section II will sketch some of the contexts in which legal issues about decision-making arise in the lives of people with mental retardation. Section III will discuss the generic legal doctrines of consent which form the backdrop for legal analysis of these problems, with particular attention to …

Limits On The State's Power To Confine 'Dangerous' Persons: Constitutional Implications Of Foucha V. Louisiana, James W. Ellis

Faculty Scholarship

This Article does not attempt a complete analysis of all the constitutional implications of Foucha,nor does it attempt to provide a definitive answer to the question of the constitutionality of Washington's sexual predator statute. Rather, because Foucha addressed important due process and equal protection questions relevant to the Washington statute, the Article is an attempt to analyze the case's basic constitutional holdings and discussion on the issue of state deprivation of physical liberty.

Addressing Recidivism: Legal Education In Correctional Settings, Justin P. Brooks

Faculty Scholarship

No abstract provided.

Entail In Two Cities: A Comparative Study Of Long Term Leases In Birmingham, England And Baltimore, Maryland 1700-1900, Garrett Power

Faculty Scholarship

Urban planning is often thought of as a conscious collection of governmental choices made as to the shape and social structure of the city. Thoughtful and forward looking public policies are viewed as mapping out the future. Overlooked or understated in this estimation are the less purposeful influences on the urban morphology and city sociology. This paper examines one such influence, land tenure, by taking a comparative look at the residential development of Birmingham, England, and Baltimore, Maryland, between 1700 and 1900. Birmingham and Baltimore both housed their working class populations in densely-packed dwellings with shared party walls. And both …

Of Pdrs And Precedent, Jim Paulson, James Hambleton

Faculty Scholarship

This Texas Lawyer Legal Research column article discusses the Texas Court of Criminal Appeals’ use of discretionary review powers to discourage out-of-staters from setting up a law practice in Texas and the true anniversary date of the Texas Court of Criminal Appeals.

Where Have You Gone, Karl Llewellyn - Should Congress Turn Its Lonely Eyes To You, Stephen F. Ross

Faculty Scholarship

The purpose of this paper is to explore what, if anything, Congress should do about the canons of statutory construction to prevent judges who are more conservative (or perhaps, in a future era, more progressive) than the majority of the legislature from employing those canons to distort or frustrate legislative policy preferences.

A Theory Of Law And Information: Copyright, Spleens, Blackmail, And Insider Trading, James Boyle

Faculty Scholarship

In this Article, Professor Boyle undertakes an analysis of the law's treatment of information across four apparently disparate realms: copyright, genetic information, blackmail, and insider trading. He argues that questions of information regulation, commodification, and access are shaped by two neglected processes of interpretive construction. First, such issues are often decided by pigeonholing them into implicitly contradictory stereotypes of "public" or "private" information. These conflicting stereotypes have their roots in basic assumptions about politics, the market, and privacy in a liberal state. Second, Professor Boyle argues that tension between these stereotypes is often apparently resolved by the use of a …

Voice, Perspective, Truth, And Justice: Race And The Mountain In The Legal Academy, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Public Life And Hostility To Religion, Frederick Mark Gedicks

Faculty Scholarship

Many who value the contributions of religion to American life have contended that American public life is hostile to religion. They perceive many of the Supreme Court's Religion Clause opinions as hostile to religion, and circulate anecdotes about the antireligious hostility of public life. Studies also suggest that some of the principle actors in American public life systematically marginalize religious viewpoints relative to secular ones. Nevertheless, others are baffled by the suggestion that public life discriminates against religion. These people note that religion is deeply (if controversially) involved in much of contemporary American politics, and dismiss anecdotes about such hostility …

The Judicial Business Of A Nineteenth-Century Federal Trial Court: The Northern District Of California, 1851-1891, Christian G. Fritz

Faculty Scholarship

Studies of the work of American trial courts--particularly the federal courts in the nineteenth century--are extremely rare. One exception is Federal Justice in California: The Court of Ogden Hoffman, 1851-1891 (1991)--an archival study of the forty year tenure of the first judge of the Northern District of California. Federal Justice is both an institutional study of that court and a biography of its first judge, Ogden Hoffman. Federal Justice rests upon an analysis of over 19,000 case files generated by the first forty years of that courts existence and provides a general summary of the dockets and workload of the …

500 Years After Columbus: Promoting And Protecting Multiculturalism In The Arts, Sherri L. Burr

Faculty Scholarship

In 1992, the San Antonio Museum of Art hosted a panel which addressed a number of issues, including: what arts institutions can do to better represent the cultures of the communities they serve; what the United States is doing to protect Native American art and culture; what the international community is doing to address the flow of art and cultural objects across national boundaries; and what should be the plan to protect and to promote multiculturalism in the arts for the next 500 years. This article summarizes and highlights this event.

Immigration And Group Relations In France And America, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

The Tragedy Of The Interstate Child: A Critical Reexamination Of The Uniform Child Custody Jurisdiction Act And The Parental Kidnaping Prevention Act, Anne B. Goldstein

Faculty Scholarship

This Article's thesis is that the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnaping Prevention Act (PKPA) have not eliminated jurisdictional competition because a federal system such as ours cannot achieve both of the Acts' two main instrumental goals - preventing or punishing "child snatching" and promoting well-informed decisions. Our system commits custody decisions to sovereign states, which make and modify the decisions according to indeterminate precepts. Such a system will inevitably create some version of the interstate child; so long as these features of our system persist, legislation cannot solve the problem. Therefore, although this Article proposes …

Computer Programs In Europe: A Comparative Analysis Of The 1991 Ec Software Directive, Jerome Huet, Jane C. Ginsburg

Faculty Scholarship

Long awaited – if not feared – in the computer industry, where its elaboration had evoked heated debate, the European Council Directive of May 14, 1991 on the Legal Protection of Computer Programs (the "Directive" or "Software Directive")has imposed common principles of copyright protection on the twelve Member States of the European Community (the "EC", the "Community"). As it declares in its preamble, the Directive responds to the need to ensure the proper functioning of a single marketand, to that end, to eliminate man), of the current differences among the Member States' legal systems.

In the domain of European copyright …

Minor Changes: Emancipating Children In Modern Times, Carol Sanger, Eleanor Willemsen

Faculty Scholarship

Parents and their teenage children don't always get along. At some time during adolescent development, parents may turn into embarrassments and teenagers into domestic terrorists. For most families this is a phase. Adolescence is endured, the child accomplishes some degree of separation from parents, and the transition to adulthood advances.

In some families, however, the period is more like a siege than a phase. Conflict may last longer and be more strifeful, more intense. If the family is incapable or unwilling to resolve the tensions, an intractability may set in. In these cases, domestic tranquility seems attainable only when the …

M Is For The Many Things, Carol Sanger

Faculty Scholarship

People have gotten quite a few things about mothers and motherhood wrong over the last 700 or so years. Educators, historians, jurists, philosophers, physicians, social workers, and theologians have been telling us what mothers are like: what they need, how they feel, what pleases them, how and how well they think. Mothers didn't love their children in the fifteenth century and loved them too much in the 1950s. Black mothers felt no pain in childbirth, and white mothers felt no pleasure in intercourse. The obligations of motherhood, physical and social, have been used to explain why women should not work, …

Jewish Lawyering In A Multicultural Society: A Midrash On Levinson Colloquy, Russell G. Pearce

Faculty Scholarship

When we acknowledge the contradiction between the project's goal and the reality of group influence, we are led to consider the alternative strategy of creating community. Such a strategy would invite lawyers to begin a community dialogue regarding how each of our group identities, and the responses of others to our identities, interfere with our efforts to realize the goal of equal justice. While significant to the understanding of group dynamics, consideration of Jewish lawyering probably has limited value as a predictor of an individual lawyer's professional conduct. The actual and potential influence of Jewishness on lawyering is quite diverse, …

Corporate Culpability Under The Federal Sentencing Guidelines, Jennifer Moore

Faculty Scholarship

This Article examines the use of corporate culpability in the Federal Sentencing Guidelines and addresses three major questions: In light of the traditional unimportance of culpability in corporate criminal law, is corporate culpability an appropriate concern of the Guidelines? If so, how is corporate culpability best conceptualized? Finally, how do the Guidelines understand corporate culpability, and how close do they come to embodying this most satisfying theory? Part I of the Article discusses the principal reasons why culpability has been important at the trial and sentencing of individual criminals, and argues that similar reasons justify concern with culpability in the …

Establishing Fault In Collision Cases, Joseph Sweeney

Faculty Scholarship

No abstract provided.

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

The International Code Of Marketing Of Breast-Milk Substitutes: Survey Of Legislation And Other Measures Adopted (1981-1991), Gillian L. Lester

Faculty Scholarship

Since the adoption of the International Code of Marketing of Breast·milk Substitutes in 1981, Member States of the World Health Organization have responded in varying degree and manner in giving effect to it. WHO has prepared a comprehensive summary, organized on a country-by-country basis, of government action in this regard (document WHO /MCH/NVT /90.1). The present paper complements chis summary, and increases its usefulness, by focusing on the Code's individual articles and describing how each has been given expression through national legislation or other measures. Their adoption is one aspect of the wider efforts Member States are making to address …

The Individualized-Consideration Principle And The Death Penalty As Cruel And Unusual Punishment, Ronald J. Mann

Faculty Scholarship

The Eighth Amendment to the United States Constitution prohibits infliction of "cruel and unusual punishments." The Supreme Court established the basic principles applying this amendment to the death penalty during a six-year period in the 1970's. First, in 1972, in Furman v. Georgia, the Court invalidated all then-existing death penalty statutes. Second, in 1976, in Gregg v. Georgia and its companions, the Court upheld some of the statutes promulgated in response to Furman but invalidated others. Finally, in 1978, in Lockett v. Ohio, the Court invalidated an Ohio statute because it failed to give the sentencer a sufficient …

Efficiency And Individualism, Gary S. Lawson

Faculty Scholarship

Law and economics-the systematic application of neoclassical price theory to legal problems has dominated the legal academy in recent years. One recent study found that law and economics "for several decades appears to have pervaded about one quarter of scholarship in elite law reviews," and that figure may seriously

understate the theory's influence. A number of justifiably well regarded scholarly journals devote themselves almost exclusively to economic analysis of law, and the subject is now a regular part of law school curricula.' Perhaps most importantly, law and economics is a pervasive and influential presence in informal academic discussions. Even legal …