Digital Commons Network^™

(Baby) M Is For The Many Things: Why I Start With Baby M, Carol Sanger

Faculty Scholarship

For several years now I have begun my first-year contracts course with the 1988 New Jersey Supreme Court case In the Matter of Baby M. In this essay, I want to explain why. I offer the explanation in the spirit of modest proselytizing, recognizing that many of us already have a favored method or manner into the course: some introductory questions we pose before leaping into (or over) the introductions already provided by the editors of the many excellent casebooks available. But I have found that Baby M works extremely well in ways that others may want to consider. …

Linguistic Meaning, Nonlinguistic “Expression,” And The Multiplevariants Of Expressivism: A Reply To Professors Anderson And Pildes, Matthew D. Adler

Faculty Scholarship

No abstract provided.

National Self Determination In Historical Perspective 1789/1989 The Legacy Of The French Revolution For Today's Debates, Chimene Keitner

Faculty Scholarship

No abstract provided.

The Limits Of Privilege: The Developing Scope Of Federal Psychotherapist-Patient Privilege Law, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

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.

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

Faculty Scholarship

This Article argues that Hong Kong succeeded to the ICCPR and the reporting obligations under the Covenant. Part I of the Article traces the development of the ICCPR in Hong Kong before 1997. This development is important because the Joint Declaration provides only for the continuation of the ICCPR as applied to Hong Kong before the transition. Parts II and III examine whether Hong Kong succeeded to the ICCPR. Since the Covenant is ambiguous as to whether the contracting parties are limited to sovereign states, Part II evaluates whether Hong Kong satisfies the membership requirement as stipulated in Article 48(1) …

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.

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.

Introduction: Latcrit Theory: Mapping It's Intellectual And Political Foundations And Future Self-Critical Directions, Margaret E. Montoya

Faculty Scholarship

The third annual gathering of LatCrit scholars has resulted in this cluster of essays and articles that continue the work of defining the foundations and the future directions of this legal scholarship movement. As described in some of the articles within this cluster, LatCrit has had the benefit of learning valuable lessons from other slightly older schools of critical legal theory, most particularly from the Critical Race Theory ("CRT") Workshop. The LatCrit movement has been strengthened because scholars identified primarily with CRT working with and alongside scholars identified primarily with LatCrit have struggled to recognize, name and address the hetero-normativity …

Discontinuous Tradition Of Sentencing Discretion: Koon's Failure To Recognize The Reshaping Of Judicial Discretion Under The Guidelines, The, Ian Weinstein

Faculty Scholarship

Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise …

Teaching Reasoning, Vincent A. Blasi

Faculty Scholarship

Reasoning skills of a certain sort are taught well in the traditional law school curriculum. No matter how good her previous education, the typical law student surely acquires an improved facility at testing propositions by considering hypothetical applications. Many students learn a lot about linguistic indeterminacy, unintended consequences, the allocation of decision-making responsibility, and how much turns on which questions are asked and how they are framed. It is a rare, indeed obtuse, person who completes a legal education still temperamentally inclined to refute unwelcome ideas when distinguishing them will do.

Where legal education falls short, I think, is with …

So Much For Savages: Navajo 1, Government 0 In Final Moments Of Play, Eben Moglen

Faculty Scholarship

Dame i gospodo, uvaˇzene kolege, poˇcastvovan sam vaˇsim pozivom da prisustvujem ovom znaˇcajnom skupu. Danas ´cu govoriti o ograniˇcenjina baziranim na ustavnim pravima regulacije naˇse komunikacije, od strane vlade, a u interesu signorsti. Ali na kraju, kao ˇsto ´cete i vi sami shvatiti nemo puno toga da se kaˇze, samo na osnovu toga ˇsto je na´cin komunikacije nov. Pre svega treba se reˇsiti pitanje jezika. After all, every act of linguistic communication occurs in a social context. And the single most important choice that we make when we communicate with one another is the choice of the language in which …

Can The Legal System Use Experts On Meaning?, Lawrence Solan

Faculty Scholarship

No abstract provided.

A Tale Of Two Proteins, Robert A. Bohrer

Faculty Scholarship

In this article we examine the Orphan Drug Act and one of the most important incentives it provides for the development of new drugs for rare diseases, a seven-year period of market exclusivity for new orphan drugs. The FDA has had difficulty interpreting the market exclusivity provisions of the Orphan Drug Act since its enactment. The continuing uncertainties about the scope of protection that the Act provides for innovative products threaten the basic purposes of the Act. The FDA's recent interpretation of the Act raises numerous questions: Should market protection from the Orphan Drug Act depend on the physical and …

Nichiren’S Risshō Ankoku Ron And Canon Formation, William E. Deal

Faculty Scholarship

Regardless of his own stated purpose or expected outcome for the Risshõ ankoku ron, one of Nichiren’s accomplishments in writing this treatise was the articulation of a canon, that is, a list of texts that were deemed true and authoritative from his perspective, as distinguished from other writings that were not. This essay explores the process of canon formation in Nichiren Buddhism, focusing on the structure and argument of the Risshõ ankoku ron. Noting five notions present in the process of canon formation, namely, selectivity, hierarchy, closure, orthodoxy, and legitimation, it examines the particular way these elements are manifest in …

Diseases Of Meaning, Manifestations Of Health, And Metaphor, Peter J. Whitehouse

Faculty Scholarship

Disease and health are commonly thought of as distinct opposites. We propose a different view in which both may be seen to be facets of healthy functioning, each necessary for the other, each giving rise to the other. Thus, disease may be thought of as a manifestation of health. It is the healthy response of an organism striving to maintain physical, psychologic, and spiritual equilibrium. Disease is not necessarily to be avoided, blocked, or suppressed. Rather, it should be understood to be a process of transformation. The process should therefore be facilitated because it is an integral part of the …

Refocusing The Burden Of Proof In Criminal Cases: Some Doubt About Reasonable Doubt, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Internet, Securities Regulation, And Theory Of Law, Tamar Frankel

Faculty Scholarship

Rarely has a change in the environment affected society as dramatically as the Internet. It has transformed the way we retain, transfer, and exchange information. At minimal cost, the Internet offers us far more information at a faster pace than ever before. It enables us to interact around the globe with more people than at any time in the past. When such dramatic environmental changes occur, drastic changes in the law often follow. 1 The Internet affects the environment in which securities markets operate, and the laws that govern them. 2 The use of the Internet has already begun to …

Using Improvisation To Teach Communication In An Academic Medical Center, Debra Gerardi

Faculty Scholarship

No abstract provided.

Markets, Democracy, And Ethnicity: Toward A New Paradigm For Law And Development, Amy L. Chua

Faculty Scholarship

No abstract provided.

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Faculty Scholarship

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

Dynamic Treaty Interpretation, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Linguistics And The Composition Of Legal Documents: Border Crossing, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

Lawyering In The State Of Nature: Instinct And Automaticity In Legal Problem Solving , Ian Weinstein

Faculty Scholarship

This article explains why lawyers do not think or talk like other people, how they got this way, and why this is both a good thing and a bad thing. I have watched hundreds of law students leave their old ways of thinking and talking behind and begin to sound like lawyers. One marker of the progress from lay person to lawyer is the emergence of the ability to tell a coherent fact and law story about a new legal problem. I have sometimes celebrated this professional progress and sometimes lamented the loss of common sense, but my lawyerly analysis …

Regarding Rights: An Essay Honoring The Fiftieth Anniversary Of The Universal Declaration Of Human Rights Introduction: Locating Culture, Identity, And Human Rights Symposium In Celebration Of The Fiftieth Anniversary Of The Universal Declaration Of Human Rights, Tracy E. Higgins

Faculty Scholarship

The half-century since the drafting of the Universal Declaration of Human Rights' has been famously heralded as the "Age of Rights" and the concept of human rights described as "the only political-moral idea that has gained universal acceptance." During the same period, however, both terms defining the subject-human and rights-have become increasingly contested. Informed by the emergence of identity-based political movements, critics have attacked the category human has as bearing the baggage of Western Enlightenment assumptions about personhood and community, inherently racist, sexist, and classist. Theorists across the political spectrum have criticized the concept of rights as indeterminate, destructive of …

Introduction: Locating Culture, Identity, And Human Rights Symposium In Celebration Of The Fiftieth Anniversary Of The Universal Declaration Of Human Rights: Introduction, Catherine Powell

Faculty Scholarship

As we celebrate the Fiftieth Anniversary of the Universal Declaration of Human Rights, the idea of human rights endures. The human rights idea was honored at a conference organized by the Association of the Bar of the City of New York, held at Fordham Law School on December 10-12, 1999, to commemorate the first fifty years of the Universal Declaration of Human Rights. The four pieces that follow were presented at the conference as part of a panel addressing one of the central philosophical concerns regarding the human rights project: its universality. While the panel's title, "What is a Human …

Kahan On Mistakes, Daniel B. Yeager

Faculty Scholarship

In Ignorance of Law Is an Excuse - but Only for the Virtuous, Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts
of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages. In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan …

A New Age Of Federalism, Thomas W. Merrill

Faculty Scholarship

Federalism has been in the news a lot over the past few years. The Republican-controlled Congress has enacted restrictions on the imposition of unfunded federal mandates on state governments and has passed significant welfare reform, one of the keys to which is greater state freedom in the implementation of welfare programs. The President, although often seen as resisting the more extreme Republican proposals for devolution, is himself something of an advocate for states’ rights. Clinton was a governor before he was President, and in that capacity he experienced a number of frustrations with federal red tape. Perhaps as a result, …

A Comment On The 1996 United Kingdom Arbitration Act, Thomas E. Carbonneau

Faculty Scholarship

The 1996 United Kingdom Arbitration Act is a remarkable piece of legislation. It is a highly accessible statutory framework both from a linguistic and organizational standpoint. The 1996 Act represents a substantial improvement over prior English arbitration statutes,including the 1979 Act. The new legislation is comprehensive, thorough, cogent and coherent. In its presentation and content, it easily rivals both longstanding and recentlegislative enactments on arbitration. It is built upon a wealth of knowledge and expertise of arbitration law and practice, and embodies a very contemporary and integrated concept of arbitration. This commentary endeavors to highlight and appraise the most significant …

The Fall And Rise Of Criminal Theory, George P. Fletcher

Faculty Scholarship

These are good times – at least for the theory of criminal law. This special issue of Buffalo Criminal Law Review testifies to a remarkable surge of interest among younger scholars in perennial questions: Why should we punish offenders? Do we require a human act as a precondition for liability and what is its structure? What does it mean for someone to be guilty or culpable for committing an offense? How do we avoid contradictions in structuring the criteria of liability? The time has come for renewed intensity in pondering and discussing these basic issues.

The contributions of this symposium …