Digital Commons Network^™

Equity And Hierarchy: Reflections On The Harris Execution, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The legal controversy surrounding the execution of Robert Alton Harris is only one in a series of cases over the past few months testing the proper relationship between the Supreme Court and the inferior federal courts. Controversy over inferior federal court grants or denials of injunctions concerning Haitian refugees1 and the French abortion pill2 have starkly raised, as does the Harris case3, profound questions concerning Supreme Court review of inferior court rulings on issues involving equitable relief. The Harris case did not display the American legal system at its finest. None of the participants in the process distinguished themselves-not the …

Deconstitutionalizing Justiciability: The Example Of Mootness, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

L'Arbitrage Et Le Recouvrement Des Prêts Consentis À Des Débiteurs Étrangers, William W. Park

Faculty Scholarship

L'auteur explore le rile complexe de 'arbitrage dans le rglement des difflrends financiers intemationaux impliquant des dettes privies et publiques. II onus rappelle que le diveloppement 6conomique global bnlficie d'un climat de confiance dons les relations commerciales internationales. Los doctrines juridiques et les procidures qui ajoutent de l'incertitude dans le processus de remboursement des prfts ne peuvent que freiner I'allocation de crdits qui pourraient autrement favoriser le commerce et l'investissement outre-frontikre, particuli~rement dons les pays en vole do diveloppement.

The author explores the complex role of arbitration in the settlement of international financial controversies involving both private and public debt. …

Rouge Et Noir Reread: A Popular Constitutional History Of The Angelo Herndon Case, Kendall Thomas

Faculty Scholarship

In 1932, Eugene Angelo Braxton Hemdon, a young Afro-American member of the Communist Party, U.S.A., was arrested in Atlanta and charged with an attempt to incite insurrection against that state's lawful authority. Some five years later, in Herndon v. Lowry, Herndon filed a writ of habeas corpus asking the U.S. Supreme Court to consider the constitutionality of the Georgia statute under which he had been convicted. Two weeks before his twenty-fourth birthday, the Court, voting 5-4, declared the use of the Georgia political-crimes statute against him unconstitutional on the grounds that it deprived Herndon of his rights to freedom …

The Judicial Prerogative, Thomas W. Merrill

Faculty Scholarship

In John Locke's account of separation of powers, the executive is not limited to enforcing the rules laid down by the legislature. The chief magistrate also exercises the prerogative, a power "to act according to discretion for the public good, without the prescription of the law and sometimes even against it. "Locke explained that such a discretionary power is required because "it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigor on …

The Promissory Basis Of Past Consideration, Steve Thel, Edward Yorio

Faculty Scholarship

No abstract provided.

Lethal Fiction: The Meaning Of "Counsel" In The Sixth Amendment , Bruce A. Green

Faculty Scholarship

Charles Bell, Donald Paradis, and Shirley Tyler were tried in different states for murder. Each was convicted and sentenced to death. Charles Bell was represented at trial by a recent law school graduate who had never before tried a criminal case to completion. Donald Paradis's lawyer had passed the bar exam six months earlier, had never previously represented a criminal accused, and had not elected courses in criminal law, criminal procedure, or trial advocacy while in law school. Shirley Tyler's trial lawyer was also a member of the bar for only a few months. He had defended one previous assault …

Rediscovering The Republican Origins Of The Legal Ethics Codes, Russell G. Pearce

Faculty Scholarship

Many commentators wrongly assume that the hired gun ideal is the foundation of our legal ethics codes. This article explains that this assumption is based on an historical mistake that has consequences for interpreting the modern codes. Judge George Sharswood, the nineteenth century scholar whose work provided the basis for the 1908 A.B.A. Canons of Ethics, had a republican conception that rejected the adversarial ethic in favor of a more nuanced conception that combined loyalty to clients with a thick obligation to the public good that both bounded client representation and required lawyers to provide political leadership. Although the emphasis …

Beyond The Second Amendment: An Individual Right To Arms Viewed Through The Ninth Amendment , Nicholas J. Johnson

Faculty Scholarship

Traditionally, the debate over the individual right to possess firearms has focused on the origins and meaning of the Second Amendment. Some constitutional scholars have dismissed the idea that the Second Amendment protects an individual right to arms. They argue that it only prevents the federal government from disarming states. Other scholars, focusing on the language of the amendment and its historical context, conclude that it does indeed establish an individual right to firearms. This article examines whether, even absent the Second Amendment, the Constitution restrains government from taking away what may be individuals' best tools of self-defense. The foothold …

The Natural Law Component Of The Ninth Amendment, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Democracy's Dawn American Judges And The Rule Of Law Abroad, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Hate Speech, Cultural Diversity, And The Foundational Paradigms Of Free Expression, Calvin R. Massey

Faculty Scholarship

No abstract provided.

The New Wave Of Hearsay Reform Scholarship, Roger C. Park

Faculty Scholarship

No abstract provided.

A Qualitative Theory Of The Dead Hand, William K.S. Wang, Adam J. Hirsch

Faculty Scholarship

No abstract provided.

Federalism And The Prevention Of Groundwater Contamination, Denise D. Fort

Faculty Scholarship

Pending

H Ii Region Abundances: Model Oxygen Line Ratios, Stacy S. Mcgaugh

Faculty Scholarship

We present an extensive, homogeneous grid of H II region models. We find that the behavior of the strong oxygen lines can be modeled by taking proper account of the softening of the ionizing spectra pro duced by stars of increasing metallicity. This provides a calibration of the abundance indicating line ratio ([O II] λ3727 + [O III] λλ4959, 5007)/Hβ which is comparable in accuracy to that obtainable by direct methods when a temperature-sensitive line ratio is available. No metallicity dependence of the IMF is required to explain the systematic softening of stellar spectra with increasing metallicity. It results naturally …

The Private Attorney General Meets Public Contract Law: Procurement Oversight By Protest, Robert C. Marshall, Michael J. Meurer, Jean-Francois Richard

Faculty Scholarship

In this Article, protests are analyzed, from both an economic and legal perspective, as a decentralized mechanism for oversight of the competitive procurement process. Attention focuses on the protest process at the General Services Administration Board of Contract Appeals (hereinafter "the Board" or "GSBCA"). It is argued that protests are an effective means of deterring and correcting agency problems among procurement personnel and, consequently, accomplishing the procurement objectives of the government. Drawbacks of the protest process are identified, explanations are offered for the existence of these negative side effects, and solutions are proposed. In addition, protests are compared to centralized …

Through The Looking Glass Darkly: Cleveland V. Piper Aircraft And Second Collision Liability, David J. Stout

Faculty Scholarship

The holding in Clevland v. Piper Aircraft Corpororation is in direct conflict with the analysis for the tort of crashworthiness and operates to undermine the fundamental social policies which formed the basis for the tort of crashworthiness. A thorough understanding of the Tenth Circuit's opinion, which is not binding on New Mexico state courts, and the reasons why the court misconstrued New Mexico law is essential for the successful prosecution of a crashworthiness case

Choosing Federal Court For Determination Of State Law Questions, Ted Occhialino

Faculty Scholarship

The combined effect of Erie R. R. Co. v. Tompkins, 304 US. 64, 82 L Ed. 1188, 58 S. Ct 817 (1938) and proliferating certification statutes is to diminish, but not eliminate, the advantage that a litigant might gain from having a federal Judge, rather than a state court, construe state law. There continue to be cases in which the opportunity for a more favorable interpretation of state law in federal court will be an important and possibly determinative factor in choosing a federal court for the resolution of claims based upon state law. The possibility of a favorable "Erie …

L'Harmonie Dissonante: Strict Products Liability Attempted In The European Community, Anita Bernstein

Faculty Scholarship

No abstract provided.

International Securities Regulation: London's "Big Bang" And The European Securities Markets, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Monologue Or Dialogue In Management Decisions: A Comparison Of Mandatory Bargaining Duties In The United States And Sweden, Timothy A. Canova

Faculty Scholarship

Management and labor are adversaries in both U.S. and Swedish industrial relations. The Swedish model, however, is marked by a continual dialogue between the adversaries with the objective of achieving mutual understanding on a wide range of issues. This dialogue has been fostered by Swedish labor law reforms, particularly the Swedish Act on Co-Determination, along with a comprehensive labor market policy to promote employment. The result of such reasoned dialogue is greater labor support for industrial restructurings and management support for the technological modernization of industry. The American system could better be characterized as a monologue. In the U.S. the …

The Annapolis Poll Books Of 1800 And 1804: African American Voting In The Early Republic, David S. Bogen

Faculty Scholarship

No abstract provided.

Book Review: Slave Law In The Americas, David S. Bogen

Faculty Scholarship

No abstract provided.

Multiple Permits, Temporary Takings, And Just Compensation, Garrett Power

Faculty Scholarship

No abstract provided.

Teaching Students How To Think Like Lawyers: Integrating Socratic Method With The Writing Process, Mary Kate Kearney, Mary Beth Beazley

Faculty Scholarship

No abstract provided.

Feminist Jurisprudence - The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda Finley, Carin Clauss, Joan Bertin

Faculty Scholarship

No abstract provided.

San Miguel Del Bado And The Loss Of The Common Lands Of New Mexico Community Land Grants, G. Emlen Hall

Faculty Scholarship

No United States governmental action has so rankled revisionist New Mexico land grant scholars as the Supreme Court Sandoval decision in 1897. In that ruling the court held that Spanish and Mexican law had not vested in New Mexico's extensive community land grants a sufficient title to the unallotted common lands within the grant boundaries to bring those lands within the property guarantees of the Treaty of Guadalupe Hidalgo in 1848. The Supreme Court employed at best opaque Spanish and Mexican legal authority to justify its decision; the historical legal analysis has been roundly, if not universally, criticized on that …

A Duty To Warn: One American View Of The Ec Products Liability Directive, Anita Bernstein

Faculty Scholarship

No abstract provided.

Good Legal Writing: A Guide For The Perplexed, Samuel K. Murumba

Faculty Scholarship

No abstract provided.