Digital Commons Network^™

Santa Clara Pueblo V. Martinez: Twenty-Five Years Of Disparate Cultural Visions An Essay Introducing The Case For Re-Argument Before The American Indian Nations Supreme Court, Gloria Valencia-Weber

Faculty Scholarship

Santa Clara Pueblo v. Martinez nakedly presents a conflict between the individual rights norm of equality and the communal or collective political right of the first sovereigns within U.S. borders. The conflict underlies the discourse in law scholarship and reflects disparate cultural visions between mainstream society and American Indians. In Indian law the decision has saliency with positive and negative force injected into different arenas besides equal protection, gender, and membership qualifications. It is a major fortification for the federally recognized tribal sovereigns to exclude external law and forums, the federal law and courts, in how tribes exercise self-government. The …

The Rule Of Lenity As A Rule Of Structure, Zachary S. Price

Faculty Scholarship

No abstract provided.

Brown At 50: Reconstructing Brown'S Promise, Taunya Lovell Banks

Faculty Scholarship

Today the measure of equal education for black children often is the racial composition of the school population rather than the quality of education received. Increasingly educational achievement for children of all races is tied to socioeconomic status. Since whites as a group are more affluent than non-whites, race and class tend to get conflated leaving uninformed people to conclude that racial integration alone is the measure of equal educational opportunities for black and other non-white children. Legal scholars writing about equal educational opportunities tend to focus either on ways to achieve racial integration or funding equality. Few scholars explore …

Pernicious Ambiguity In Contracts And Statutes, Lawrence Solan

Faculty Scholarship

No abstract provided.

Reading Clarence Thomas, Kendall Thomas

Faculty Scholarship

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs. In the second …

Social Justice In European Contract Law A Manifesto, Ugo Mattei

Faculty Scholarship

No abstract provided.

Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss

Faculty Scholarship

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen …

Rethinking Article I, Section I: From Nondelegation To Exclusive Delegation, Thomas W. Merrill

Faculty Scholarship

The first substantive clause of the Constitution – providing that "[all legislative Powers herein granted shall be vested in a Congress" – is associated with two postulates about the allocation of legislative power. The first is the nondelegation doctrine, which says that Congress may not delegate legislative power. The second is the exclusive delegation doctrine, which says that only Congress may delegate legislative power. This Article explores the textual, historical, and judicial support for these two readings of Article I, Section 1, as well as the practical consequences of starting from one postulate as opposed to the other. The Article …

Ambivalence About Treason, George P. Fletcher

Faculty Scholarship

Betrayal and disloyalty are grievous moral wrongs, yet today when the disloyal commit treason we seem reluctant to punish them. John Walker Lindh fought for the Taliban with full knowledge that it was engaged in hostilities against the United States. It should not have been so difficult to prove by two witnesses to the overt act, as the Constitution requires, that he adhered to the enemy giving them aid and comfort. Admittedly, there were legal problems about whether the Taliban as an indirect enemy in an undeclared war could qualify as the enemy in the constitutional sense. But there was …

Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai

Faculty Scholarship

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Speech And Strife, Robert L. Tsai

Faculty Scholarship

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation …

Making A Federal Case Of It: Sabri V. United States And The Constitution Of Leviathan, Gary S. Lawson

Faculty Scholarship

The popular expression “Don't make a federal case out of it!” only makes sense if federal involvement is something unusual or special that is reserved for matters of urgent national interest. It assumes that a “federal case” is, or at least ought to be, something relatively rare and noteworthy.

For the founding generation, federal involvement in people's affairs, especially through the criminal law, was in fact a relatively rare and noteworthy event. In The Federalist, James Madison told the citizens of New York that the powers of the proposed new national government “will be exercised principally on external objects, as …

Judges As Film Critics: New Approaches To Filmic Evidence, Jessica Silbey

Faculty Scholarship

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as “demonstrative evidence,” evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live …

The Merchandising Right: Fragile Theory Or Fait Accompli?, Stacey Dogan

Faculty Scholarship

Trademark merchandising is big business. One marketing consultant estimated the global market for licensing and marketing sports-related merchandise at $17 billion in 2001. With this much money at stake, it's no surprise that trademark holders demand royalties for use of their marks on shirts, key chains, jewelry, and related consumer products. After all, the value of these products comes largely from the allure of thetrademarks, and it seems only fair to reward the party that created that value . . . doesn't it?

It turns out that the answer is more complicated than this intuitive account would predict. Trademark law …

Universal Jurisdiction: Steps Forward, Steps Back, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Understanding Conflict In A Postmodern World, Scott H. Hughes

Faculty Scholarship

This article looks at new theories about the nature and dynamics of human systems in conflict.

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Faculty Scholarship

If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stock brokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use NAFTA to escape regulation. To some extent all would be correct.'

Unfortunately, these different varieties of arbitration …

Cognitive Foundation Of The Impulse To Blame, Lawrence Solan

Faculty Scholarship

No abstract provided.

Responsibility And Blame: Psychological And Legal Perspectives - Introduction, Lawrence M. Solan

Faculty Scholarship

No abstract provided.

Hearing Voices: Speaker Identification In Court, Lawrence Solan, Peter Tiersma

Faculty Scholarship

No abstract provided.

Stuck In A Rut: The Role Of Creative Thinking In Problem Solving And Legal Education, Janet Weinstein, Linda H. Morton

Faculty Scholarship

This article focuses on the mental process of creative thinking. We discuss what it is, why we have difficulty engaging in it, and how we can overcome this difficulty through specific techniques and a more conducive environment. Creative thinking is an essential component to problem solving. In training future lawyers, we must do a better job of incorporating and supporting creative thinking in legal education. We conclude the article with a description of some of our efforts toward this objective.

Beyond Words: An Empirical Study Of Context In Contract Creation, Deborah A. Schmedemann

Faculty Scholarship

This article reports on an empirical study into how judges interpret contracts. In general, the study demonstrates that key participants do look to context for guidance on issues of contract creation. Part II summarizes the modem legal perspective on these questions, as stated in the Restatement (Second) of Contracts, as posited in the scholarly debate about relational contracts, and as exemplified in case law regarding employment contracts. Part III describes a study designed to capture the thinking on these questions of participants in an employment contract. Part IV presents the results obtained from respondents who represented the parties to the …

What Clients Want, What Lawyers Need., Anita Bernstein

Faculty Scholarship

No abstract provided.

The Harmonization Game: What Basketball Can Teach About Intellectual Property And International Trade, Peter K. Yu

Faculty Scholarship

In the recent World Men's Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While their losses might have a significant impact on how the United States prepares for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball.

The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players …

Where Is Sherlock Holmes?, Jeffrey C. Goodman

Faculty Scholarship

Most philosophers would say that fictional characters lack spatiotemporal location simply because such entities do not exist.  However, even prominent believers in ficta hold that they must lack location.  I here focus on the views of one such believer, Amie Thomasson, and her Artifactual Theory.  The fundamentals of her ontology seem correct, but I argue that the view implies that ficta do have location.  I provide a diagnosis of an argument Thomasson gives for the contrary, and then suggest a way for the Artifactual Theory to account for the locations of ficta.  I conclude by discussing some potential applications of …

The Disfavored Constitution: State Fiscal Limits And State Constitutional Law, Richard Briffault

Faculty Scholarship

The dominant theme in the resurgent state constitutional jurisprudence of the last quarter-century has been the effort of many scholars and jurists to find in state constitutions a progressive alternative to the conservative turn federal constitutional doctrine has taken in the Burger and Rehnquist eras. Following the tone set by Justice William Brennan's path-breaking 1977 article in the Harvard Law Review, the state constitutional law literature has sought a more expansive protection of civil liberties through state constitutional provisions dealing with criminal law and procedure, freedom of expression, and equality, and to ground positive rights to public services in state …

Jurors As Statutory Interpreters, Lawrence Solan

Faculty Scholarship

No abstract provided.

Women's Rights: Reframing The Issues For The Future, Ariana Dubler, Anika Rahman, Kathy Rodgers, Jane M. Spinak

Faculty Scholarship

Good morning and welcome, everyone, to our panel on Women's Rights: Refraining the Issues for the Future. I am Kathy Rodgers. I'm from the class of 1973 of Columbia Law School, and I'm looking around this room – this is not what room A and B looked like back then! Everybody has a microphone, which is great, because we hope to have some good interactive discussion with all of you this morning.

I am also, in addition to being a Columbia Law alum, the president of NOW Legal Defense and Education Fund here in New York. For over thirty-two years, …

Thinking About Eden: A Tribute To Herbert Morris, George P. Fletcher

Faculty Scholarship

This essay is an exercise in interpreting a revered, but neglected, text. I take as my object of study the story of Adam and Eve in Eden. My interest in these passages derives in large part from conversations with my mentor, Herb Morris, who taught me to appreciate the beauties and mysteries of this rich tale. For both us, the problem is explicating the deeper meaning of the story. Perhaps I put more emphasis on the original text than Morris does, but we share a common objective of understanding what the story can teach us about the human condition.

Thus, …

Who Is Andrea Yates? A Short Story About Insanity, Deborah W. Denno

Faculty Scholarship

On June 20, 2001, Andrea Yates drowned her four children in a bathtub. At Andrea’s trial, in Harris County, Texas, the prosecution’s star expert, Patrick Dietz, appeared particularly adept at persuading the jury to accept the prosecution’s assertion that Andrea was sane and acting intentionally when she killed her children. This Article analyzes the problematic aspects of Dietz's testimony in an effort to contribute some balance to the Andrea Yates story. Despite the long history of expert witnesses in criminal trials, the justice system should question the fairness and efficacy of such an unregulated storytelling process. Part I of this …