Digital Commons Network^™

Irish Legal History: An Overview And Guide To The Sources, Janet Sinder

Faculty Scholarship

No abstract provided.

The Written Contract As Safe Harbor For Dishonest Conduct, Lawrence Solan

Faculty Scholarship

No abstract provided.

Why Laws Work Pretty Well, But Not Great: Words And Rules In Legal Intrepretation, Lawrence Solan

Faculty Scholarship

No abstract provided.

Testing Multiple Intelligences: Comparing Evaluation By Simulation And Written Exam , Ian Weinstein

Faculty Scholarship

Written examinations play a key role in legal education. The LSAT is the most important factor in law school admissions. Once students enroll in law school, exams are used to evaluate and sort first year students. At most American law schools, a single, end of semester or end of year, timed, written, in class exam determines the grade in each first year class.' Although exams continue to play a major role throughout law school, once students are sorted at the end of first year it is often difficult for them to significantly change their place in the law school hierarchy. …

Three Nearly Sacred Books In Western Law, George P. Fletcher

Faculty Scholarship

We American lawyers pride ourselves on the secular nature of our legal system. We celebrate the separation of Church and State. We think that the moving spirit of the law is to be found not in eternal truths about the universe but in the contingent needs of social and economic policy. "The life of the law has not been logic: it has been experience," said Oliver Wendell Holmes, Jr., in a sentence that since 1881 has broadcast to every new generation of lawyers the pragmatic foundations of their craft.

We assume that we have little in common with the great …

The Property/Contract Interface, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

This Article explores the distinction between in personam contract rights and in rem property rights. It presents a functional explanation for why the legal system utilizes these two modalities of rights, grounded in the pattern of information costs associated with each modality. To test this theory, the Article examines four legal institutions that fall along the property/contract interface – bailments, landlord-tenant law, security interests, and trusts – in order to determine how the legal doctrine varies as the underlying situation shifts from in personam, to in rem, to certain relations intermediate between these poles. With respect to each institution, we …

Criminal Theory In The Twentieth Century, George P. Fletcher

Faculty Scholarship

The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability – normative and descriptive – are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is …

Disclosure Norms, Eric L. Talley

Faculty Scholarship

The purpose of this Article is to interrogate the relationship between judicial error and extralegal norms more formally, focusing particularly on typical corporate disclosure contexts. In so doing, I shall argue that this relationship is far less clear-cut than much of the literature suggests. Using a formal, game-theoretic model of information disclosure, I demonstrate that in the presence of judicial error, a society that benefits from extralegal norms of honest disclosure might ironically favor more expansive legal regulation than would a similarly situated society in which norms are weak or nonexistent. Thus, in contrast to the common argument that norms …

What Happened To Property In Law And Economics?, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism about the value of conceptual analysis, as opposed to functional assessment of institutions. There is, however, a deeper reason for the indifference to property. It is a commonplace of academic discourse that property is simply a "bundle of rights," and that any distribution of rights and privileges among persons with respect to things can be dignified with the (almost …

Why Courts Review Arbitral Awards, William W. Park

Faculty Scholarship

Judicial review of arbitral awards constitutes a form of risk management. In most countries courts may vacate decisions of perverse arbitrators who have ignored basic procedural fairness, as well as those of alleged arbitrators who have attempted to resolve matters never properly submitted to their jurisdiction. In some countries judges may also correct legal error or monitor an award's consistency with public policy.

Public scrutiny of arbitration is inevitable at the time of award recognition. Judges can hardly ignore the basic fairness of an arbitral proceeding when asked to give an award res judicata effect by seizing assets or staying …

Health Care, Technology And Federalism, Kevin Outterson

Faculty Scholarship

The regulation of health care has traditionally been the province of the states, most often grounded in the police power. In Colonial times, this division of responsibility was a rational response to the technological level of the eighteenth century, although even in the youth of the Republic some health and safety regulation required national and international action. With the growth of distancecompression technology, the increase in mobility of goods and services, and a significant federal financial role in health care, the grip of the police power on the regulation of health care has been weakened. Discussion of the police power …

Rape, Murder, And Formalism: What Happens If We Define Mistake Of Law?, Gerald F. Leonard

Faculty Scholarship

The criminal law maxim "ignorance of the law is no excuse" represents a broad doctrine of strict liability in an area of law that usually insists on a culpable state of mind as a prerequisite for liability. For that reason, many scholars have attacked the harsh mistake-of-law rules as incompatible with basic principles of culpability. Other scholars have come to the defense of the maxim, and courts have adhered to it quite strongly even as the list of exceptions to the maxim has slowly grown. Oddly enough, however, this debate has proceeded without a definition of mistake of law. Distinguishing …

Outrelativizing Relativism: A Liberal Defense Of The Universality Of International Human Rights, Robert D. Sloane

Faculty Scholarship

This Article seeks to provide a new framework, rooted in classical liberalism, for understanding and defending the universality of international human rights. After reviewing the philosophical and historical development of the idea of universality, I argue in Part II that none of the traditional justifications for conceiving of international human rights as universal succeed. Cultural pluralism therefore must be accepted as a descriptive truth. But to acknowledge the cultural contingency of values as a descriptive claim does not, by itself, undermine the normative claim that human rights are, or should be, universal. Instead, it points to the need to justify …

The Profiling Of Threat Versus The Threat Of Profiling, Frank H. Wu

Faculty Scholarship

No abstract provided.

Accountability And Democracy In The Case Of Using Force Under International Auspices, Charlotte Ku, Harold K. Jacobson

Faculty Scholarship

This presentation derives from a large research project that has been more than three years in progress and reflects the work of a multinational team of lawyers, policy analysts, and political scientists. The project is supported by the Ford Foundation and will conclude at the end of 2000 with the completion of a book that will cover the experience of nine democracies in deploying their military forces under international auspices as this experience relates to two large questions.

The project examines two questions:

• What is the interactive relationship between international commitments and national constitutional and political requirements?
• How does this …

One Size Does Not Fit All: The Third Multi-Track Restatement Of Conflict Of Laws, Aaron Twerski

Faculty Scholarship

No abstract provided.

Spandau Revisited: The Question Of Detention For International War Crimes, Mary Margaret Penrose

Faculty Scholarship

Drazen Erdemovic. The name may be unfamiliar to many outside the former Yugoslavia. The name will surely be unknown by most people outside the international community and those committed to the universal protection of human rights through criminal prosecution. Drazen Erdemovic is a confessed killer. Drazen Erdemovic has confessed to killing somewhere between seventy and one hundred unarmed Muslims in a mass execution as a member of the Bosnian Serb army in July 1995. In this regard, he is the first convicted defendant to stem from the International Criminal Tribunal for the former Yugoslavia (ICTY) established by the United Nations …

You Should Have Known Better, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Silence And Silencing: Their Centripetal And Centrifugal Forces In Cultural Expression, Pedagogy And Legal Discourse, Margaret E. Montoya

Faculty Scholarship

This article uses Critical Race Theory and LatCrit Theory in its analysis, methodologies, and purpose. I seek to disrupt silences around race and to provide the knowledge and skills for effective work on racial equity and justice. Language and voice have been subjects of great interest to scholars working in the areas of Critical Race Theory and Latina/o Critical Legal Theory. Silence, a counterpart of voice, has not, however, been well theorized. This Article is an invitation to attend to silence and silencing. The first part of the Article argues that one's use of silence is an aspect of communication …

Time And Money: One State's Regulation Of Check-Based Loans, Deborah A. Schmedemann

Faculty Scholarship

This article, which is part narrative and part essay, describes one professor's experience working on “check cashing” (or “check-based loans”) cases at the Appalachian Research and Defense Fund in eastern Kentucky. Parts I and II describe the typical check-based loan transaction and its effects on low-income consumers. Part III recounts how the law of check-based loans has developed in Kentucky, during the professor’s time there and since. Part IV sets forth some observations about language and legal process, suggested by the preceding narrative.

Shooting From The Lip: United States V. Dickerson, Role [Im]Morality, And The Ethics Of Legal Rhetoric, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

Introduction To The Articles Presented By Three Rising Stars In Bankruptcy Scholarship, Samuel Bufford

Faculty Scholarship

Bankruptcy law is one of the fundamental legal structures necessary to the functioning of a market economy. In the common law tradition of the United States and England, bankruptcy law dates back to 1542. Bankruptcy law's origins are even more ancient, with roots extending back to at least the Hammaurabi Code and the Law of Moses. In the transition to market economies and Western-style legal systems in Central and Eastern Europe, the development of a viable bankruptcy law is one of the first priorities. This, the United States bankruptcy law that forms the background for this symposium is central to …

Statutory Interpretation In The Courtroom, The Classroom, And Canadian Legal Literature, Stephen F. Ross

Faculty Scholarship

In recent years, judges and scholars in Canada and the United States are devoting more attention to the theory and techniques involved in statutory interpretation. Although some advocate "foundational" theories to answer all theories of interpretation, most difficult cases require a pragmatic approach that requires analysis of the statutory text, original legislative intent, and legislative purpose in light of modern circumstances. Moreover, the most difficult cases may not be answerable by any of these approaches. In difficult cases, judges often resort to "normative canons" - rules they created to further a jurisprudence they desire. These canons need to be closely …

Dignity And Victimhood, Kent Greenawalt

Faculty Scholarship

If Sandy Kadish has reminded us of limitations of consequentialist approaches to the criminal law and has proposed persuasive resolutions of issues that deontological perspectives reveal, Meir Dan-Cohen has jarred us to rethink fundamental premises about rules in the criminal justice system. His Essay is an example of his ingenuity for unsettling understandings. The Essay reads easily and seems deceptively straightforward, but it is rich in nuance and its themes are complex. This Response identifies the various themes and evaluates their plausibility. I take Professor Dan-Cohen's Essay as a preliminary exploration of a major subject, and I have responded accordingly, …

Are Mental States Relevant For Statutory And Constitutional Interpretation, Kent Greenawalt

Faculty Scholarship

Judges in the United States must interpret statutes and constitutions. Largely because these texts are framed in the English language, a language shared by legislators, judges, and other citizens, judges employ sufficiently common techniques to sustain a coherent practice. Lawyers can often say with some confidence how judges will construe particular legal provisions, and, when they have serious doubts, they can sketch the likely alternatives. But we are now in an era of sharp theoretical disagreement over what judges do when they interpret authoritative texts.

In difficult cases of statutory interpretation, are judges mainly trying to give language its ordinary …

Hercules, Herbert, And Amar: The Trouble With Intratextualism, Ernest A. Young, Adrian Vermeule

Faculty Scholarship

Commentary on, Akhil Reed Amar, Intratextualism, 112 Harvard Law Review 747 (1999).

Review Of Minding The Law, By Anthony G. Amsterdam And Jerome Bruner, James L. Kainen

Faculty Scholarship

No abstract provided.

Pragmatic Conceptualism, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary conceptions of racial …

Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt

Faculty Scholarship

In 1947, this Review published two lectures on statutory interpretation by Jerome Frank and Felix Frankfurter. Both jurists were concerned with a basic question: How constrained are judges when they interpret legislation? The answers each gives, while similar in some respects, differ strikingly. In arguing that interpretation necessarily involves a creative element, Frank analogizes the role of a judge in interpreting legislation to that of a performer in interpreting a musical composition. Although he argues that judicial creativity is constrained, Frank views statutory interpretation as "a kind of legislation." For Frankfurter, by contrast, in construing a statute, a judge is …