Digital Commons Network^™

Work Of Knowledge , Abner S. Greene

Faculty Scholarship

Interpretation involves the acquisition of knowledge. We are continually confronted with the results of purposive action. Sometimes these results are written texts, such as statutes or novels. Other times these results are events in the physical world, actions that we observe or the results of actions about which we are told. To make sense of these results of purposive action, that is, to make the results be more than just a jumble of sense impressions, the observer must find a way of organizing the material with which he or she is presented. These methods of organizing the results of purposive …

"Weightier Than A Mountain": Duty, Hierarchy, And The Consumer In Japan, Anita Bernstein, Paul Fleming

Faculty Scholarship

No abstract provided.

Blending As A Central Process Of Grammar, Mark Bernard Turner

Faculty Scholarship

Constructions are long-term memory associations of form and meaning. How are they formed and learned, how do they change, and how do they combine into new utterances (constructs, communicative performances) in working memory? This chapter analyzes the role and process of conceptual integration (blending) in the creation and use of constructions.

Voices/Voces In The Borderlands: A Colloquy On Re/Constructing Identities In Re/Constructed Legal Spaces, Margaret E. Montoya, Melissa Harrison

Faculty Scholarship

While we believe that the work of healing our cultural dyslexia is partly cognitive, in and through this paper we have tried to enact the experiential aspect. We may approach the entrances of the borderlands through reading and thinking, however we believe that the borderlands is a phenomenon of living, a phenomenon of well-intentioned people interacting in deliberate and thoughtful ways with those who are simultaneously like and unlike us/them. The borderlands require that we bring our critical faculties to bear on life's experiences, but, more often than not, we must suspend them in favor of more charitable and affiliative …

Positivism And The Separation Of Law And Economics, Avery W. Katz

Faculty Scholarship

The modem field of law and economics – that is, the application of economic analysis to legal subjects other than trade and business regulation – is now over thirty years old, but it remains controversial in the legal academy and, to a lesser extent, in the profession at large. Since its beginnings in the early 1960s, the economic approach has provoked substantial opposition and antagonism. The sources of this resistance, however, are a matter of dispute. Many economists and economically influenced lawyers attribute it to more traditional lawyers' reluctance to learn a new and unfamiliar set of concepts and techniques. …

Rationality And The Foundations Of Positive Political Theory, Mathew D. Mccubbins, Michael F. Thies

Faculty Scholarship

In this paper, we discuss and debunk the four most common critiques of the rational choice research program (which we prefer to call Positive Political Theory) by explaining and advocating its foundations: the rationality assumption, component analysis (abstraction), strategic behavior, and theory building, in turn. We argue that the rationality assumption and component analysis, properly understood, can be seen to underlie all social science, despite the protestations of critics. We then discuss the two ways that PPT most clearly contributes to political science (i.e., what distinguishes it from other research programs), namely the introduction of strategic behavior (people do not …

Bork V. Burke, Thomas W. Merrill

Faculty Scholarship

I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of our society." …

Changing Times: The Apa At Fifty, Peter L. Strauss

Faculty Scholarship

In early October 1995, Walter Gellhorn helped to open a National Archives display commemorating the fiftieth birthday of the Administrative Procedure Act ("APA"). That Act had begun to take shape just prior to World War II, when Gellhorn had directed the Attorney General's Committee on Administrative Procedure. Created in response to a political spasm of legislative activity that produced a "reform" bill President Roosevelt vetoed, Gellhorn's committee engaged in a thorough and careful survey of administrative agencies and their procedures. In the end, the committee produced twenty-seven monographs describing the variety of decision-making processes employed by the agencies and a …

Legal Indeterminacy: Its Cause And Cure, Gary S. Lawson

Faculty Scholarship

Legal indeterminacy--the extent to which any particular legal theory cannot provide knowable answers to concrete problemsis one of the principal themes of modern jurisprudence. Indeterminacy plays an important role in debates concerning interpretation, the nature of legal obligation, and the character and possibilities of the rule of law.' Indeterminacy looms particularly large in debates concerning originalism as a method of constitutional interpretation. Some scholars insist that originalism resolves too few problems to be of much use,2 while others argue that originalism's indeterminacy is often overstated.'

Legal Indeterminacy: Its Cause And Cure, Gary S. Lawson

Faculty Scholarship

Legal indeterminacy--the extent to which any particular legal theory cannot provide knowable answers to concrete problems is one of the principal themes of modern jurisprudence. Indeterminacy plays an important role in debates concerning interpretation, the nature of legal obligation, and the character and possibilities of the rule of law. Indeterminacy looms particularly large in debates concerning originalism as a method of constitutional interpretation. Some scholars insist that originalism resolves too few problems to be of much use, while others argue that originalism's indeterminacy is often overstated.

The "Straight Mind" In Russ’S The Female Man, Susan Ayres

Faculty Scholarship

In The Female Man Russ contrasts our present-day heterosexual society with two revolutionary alternatives: a utopian world of women and a dystopian world of women warring with men. The novel functions as what Monique Wittig calls a "literary war machine" because it tries "to pulverize the old forms and formal conventions." Specifically, Russ critiques the "straight mind"—heterosexual institutions that regulate gender—by showing how two representatives from "our world" respond to those institutions. She also shows two alternative worlds that further undermine, but do not solve, the way heterosexual institutions regulate gender.

In responding to the straight mind and to the …

The Supreme Court’S Philosophy Of Science: Will The Real Karl Popper Please Stand Up?, Sean O'Connor

Faculty Scholarship

No abstract provided.

Judicial Decisions And Linguistic Analysis: Is There A Linguist In The Court?, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Modern Parol Evidence Rule And Its Implications For New Textualist Statutory Interpretation, Stephen F. Ross, Daniel Trannen

Faculty Scholarship

Part I of this article focuses on the history of parol evidence in contract interpretation, describing both Williston's and Corbin's definition and application of the parol evidence rule. With the adoption of the UCC and the Second Restatement, we suggest that Corbin's position-that expansion of admissibility of parol evidence will more accurately reflect the drafters' manifest intentions and minimize the judge's personal biases-has been accepted by experts and legislators alike. In Part II, we summarize the use of legislative history in statutory interpretation, focusing on the rise of the New Textualism and its critique of the use of legislative history …

A Square Peg In A Vicious Circle: Stephen Breyer's Optimistic Prescription For The Regulatory Mess, Eric J. Gouvin

Faculty Scholarship

This Article reviews the book by Supreme Court Justice, Steven G. Breyer, "Breaking The Vicious Circle: Toward Effective Risk Regulation. " The Author discusses this book's most significant contribution that draws attention to the current regulatory regime's systemic problems, thereby encouraging serious discussion about how to "reinvent" the regulatory process. Breyer courageously points out that the political legitimacy of the process rests to some degree on the effectiveness of its product. This Review outlines the systemic problems and the "vicious circle" identified by Justice Breyer and then proceeds to review his proposed solution. The final part presents several criticisms of …

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 …

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 …

Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt

Faculty Scholarship

As the 1994 term drew to a close, "tests" for the Religion Clauses were in nearly total disarray. Apart from cases of discrimination against religions, and disputes over church property, a student of the Supreme Court's jurisprudence could not formulate any general tests that a majority of the Justices clearly support. As exciting as this state of affairs is for those who welcome uncertainty and change, it is disquieting for lawyers and clients, for judges who must decide free exercise and establishment claims, and for Supreme Court Justices who aspire to stable principles of adjudication. In this essay, I provide …

Rediscovering Client Decisionmaking: The Impact Of Role-Playing, Mary Zulack

Faculty Scholarship

There are more things of importance to representing clients than are disclosed through a typical interview or counseling session, even a session undertaken by a lawyer earnestly attempting to hear rather than ignore the client. We lawyers are often vividly aware, when we pause to contemplate the point, that we do not know all we should about our clients. We may also believe that we have great gulfs of knowledge and experience to cross in order to hear and understand any particular client. Further, we fear that our ability to cross these gulfs is limited by the human, and lawyerly, …

Linguistic Indeterminacy And The Rule Of Law: On The Perils Of Misunderstanding Wittgenstein, Christian Zapf, Eben Moglen

Faculty Scholarship

The central article of faith of the traditional understanding of the Rule of Law is that precedent uniquely determines the outcome of legal cases. Skepticism about that faith, however, is widespread. Critical Legal Scholars, as well as their intellectual ancestors, the Legal Realists, have frequently attacked the legitimacy of the received model and the formalist view of the relationship between the law and its individual applications that underlies the model. The common aim of these attacks is to demonstrate that the law is indeterminate in outcome and that the supposed constraints of the Rule of Law on judges are fictions.

Imagery And Adjudication In The Criminal Law: The Relationship Between Images Of Criminal Defendants And Ideologies Of Criminal Law In Southern Antebellum And Modern Appellate Decisions, Bernard Harcourt

Faculty Scholarship

Criminal law opinions often project a distinct image of the accused. Sometimes, she is cast in a sympathetic light and may appear vulnerable or impressionable: a single mother, whose husband has died, struggling to raise her two, loving children; an impoverished, nineteen-year-old African-American with a fifth-grade education, "mentally dull and 'slow to learn;'" or a defenseless "obedient servant," protecting himself from an "adversary armed with a deadly weapon." On other occasions, the defendant may appear threatening, savage or even diabolical: a cold-blooded recidivist that escapes from a prison workcrew, brutally stabs, rapes and murders a woman, and returns for a …

European Community Law From A U.S. Perspective, George A. Bermann

Faculty Scholarship

Although less than forty years have passed since the founding of the European Economic Community (now the European Community), the lifetime of the Community is well marked temporally. The term of each Commission furnishes a convenient time-line for measuring the Community's progress in legal integration. Since the 1970s, each year has been punctuated by two or more "summit" meetings of heads of state or government. These summits not only are key markings in their own right, but also furnish an occasion for additional monitoring of the Community's state of health. Throughout the 1970s and into the 1980s, the Community submitted …

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?

Law, Culture, And Harassment, Anita Bernstein

Faculty Scholarship

No abstract provided.

Heirs Of Leonardo: Cultural Obstacles To Strict Products Liability In Italy, Anita Bernstein, Paul Fanning

Faculty Scholarship

No abstract provided.

Hate Crimes, Homosexuals, And The Constitution, Anthony S. Winer

Faculty Scholarship

This Article begins with an analysis of certain features of the Equal Protection Clause of the Fourteenth Amendment and demonstrates that this clause establishes a fundamental right to the equal benefit of laws protecting personal security. Laws protecting personal security must be applied evenhandedly. Any discriminatory application of such laws is presumptively invalid under the Equal Protection Clause. This Article next shows that gay men and lesbians are among the most common victims of hate crime, that hate crimes against gays and lesbians are significant, persistent and widespread, and that gays and lesbians have a substantial stake in the manner …

Law And Language(S): Image, Integration And Innovation, Margaret E. Montoya

Faculty Scholarship

Examining the complex relationship between law and language enhances our understanding of the marginalization and subordination of linguistic Outsiders. This nexus between law and language has many manifestations. In this essay I discuss the biases about language that constrain traditional legal discourse while I explore strategies for its reframing by using the languages of Outsiders. Succinctly stated, this essay posits that traditional language norms create images or maintain stereotypes that stultify public discourse as well as impose cultural integration and linguistic assimilation with destructive consequences. The essay proposes that linguistic norms in law schools can be refashioned through pedagogical innovations …

Purposeful Approach To Products Liability Warnings And Non-English-Speaking Consumers Notes, Thomas H. Lee

Faculty Scholarship

This Note examines the problems associated with the duty-towarn doctrine and the non-English-speaking consumer or product user. Part II explains the current duty-to-warn doctrine, emphasizing when a warning is required, to whom the warning must be directed, and how the warning must be given. Next, Part III examines state and federal language-specific statutes, constitutional provisions, and case holdings, emphasizing the most recent cases addressing product warning requirements for non-English-speaking plaintiffs. Part IV then outlines the risks to both product sellers and consumers of continuing the current haphazard approach and suggests a statutory solution to the doctrinal confusion, drawing from the …

Mascaras, Trenzas, Y Grenas: Un/Masking The Self While Un/Braiding Latina Stories With Legal Discourse, Margaret E. Montoya

Faculty Scholarship

This article uses Critical Race Theory methodologies, such as autobiographical narratives, and analytical approaches, such as critical pedagogy. Using personal narrative, this Article examines the various masks ("mascaras") used to control how people respond to us and the important role such masks play in the subordination of Outsiders. The first part of the Article tells stories; the second part of the Article unbraids the stories to reveal an imbedded message: that Outsider storytelling is a discursive technique for resisting cultural and linguistic domination through personal and collective redefinition. The Article explores how transculturation creates new options for expression, personal identity, …

Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill

Faculty Scholarship

The last decade has been a remarkable one for statutory interpretation. For most of our history, American judges have been pragmatists when it comes to interpreting statutes. They have drawn on various conventions – the plain meaning rule, legislative history, considerations of statutory purpose, canons of construction – "much as a golfer selects the proper club when he gauges the distance to the pin and the contours of the course." The arrival of Justice Scalia on the Supreme Court has changed this. Justice Scalia is a foundationalist, insisting that certain interpretational tools should be permanently banned from judicial use. What …