Digital Commons Network^™

European Economic And Monetary Union: Will The Emu Ever Fly The Euro: A New Single Currency For Europe: Legal Framework, Roger J. Goebel

Faculty Scholarship

The title of this article represents a pun, but a pun with a point that responds to the tensions between these dreams of EMU's success and fears of its failure. The emu is a large Australian bird, but, like the better-known ostrich, the emu does not fly. However, it can run very fast. The point is, that during the early stages of planning for the EMU there were some very high-flying aspirations for what it might attain, and what its attainment might mean for the political future of the European Union. Since then, these aspirations have been considerably chilled by …

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 …

Lawyer Discrimination Against Clients: Outright Rejection--No; Limitations On Issues And Arguments-Yes, Sam Stonefield

Faculty Scholarship

The issue of lawyer discrimination brings new perspectives to traditional topics like the practice of law, the role of the lawyer and the relationship with, and rights of, the client. It forces us to examine the nature of lawyer discretion, the limits of that discretion and the consequences of trying to regulate that discretion. The examinationis a daunting task. This essay offers an approach that attempts to protect both the prohibition against discrimination and the practice of law and to accommodate the tension that necessarily accompanies this effort. It suggests that the best solution is to prohibit lawyers from discriminating …

Law, Language And Lenity, Lawrence Solan

Faculty Scholarship

No abstract provided.

We're All Capitalist Now: The Importance, Nature, Provision And Regulation Of Investor Education, James A. Fanto

Faculty Scholarship

No abstract provided.

The Pentagon Papers Case And The Path Not Taken: A Personal Memoir On The First Amendment And The Separation Of Powers, Joel Gora

Faculty Scholarship

No abstract provided.

Achieving Consensus On Defective Product Design, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Informed Consent In Mediation: A Guiding Principle For Truly Educated Decisionmaking , Jacqueline Nolan-Haley

Faculty Scholarship

Informed consent has a central role to play in mediation. Without it, mediation's promises of autonomy and self-determination are empty. This Article has given the theoretical and policy justifications for a reform of mediation practice that honors the principle of informed consent. I have argued for a contextualized approach that takes into account mediation's location, the voluntariness of the parties' consent, and their representational status. This kind of analysis will lead to a more informed practice of mediation decisionmaking than exists currently and provide a perspective that can more prudently guide a mediator's conduct. The proposed approach promotes greater fairness …

Figure, Mark Bernard Turner

Faculty Scholarship

This chapter reviews the origins of construction grammar, beginning with classical antiquity; analyzes the nature of figure in thought and multimodal communication; and provides an anchor for studies of figure in the basic mental operation of conceptual blending.

Multiracial Discourse: Racial Classifications In An Era Of Color-Blind Jurisprudence, Tanya K. Hernandez

Faculty Scholarship

This Article analyzes the widespread legal ramifications of the Multiracial Category Movement (MCM) and assesses whether the MCM's proposal effectively advances its stated goal of promoting racial equality. After analyzing the legal import of multiracial discourse, the Article determines that the MCM misperception of race and its fluidity inadvertently furthers the progression of color-blind jurisprudence in direct contravention of the MCM goal of promoting racial equality. Part I provides background and identifies the motivating forces behind the MCM as a color-blind movement. Part II critiques the MCM for its adverse effects upon racial justice efforts in furthering the manner in …

The Mccleskey Puzzle: Remedying Prosecutorial Discrimination Against Black Victims In Capital Sentencing, Evan Tsen Lee, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Dogmas Of The Model Penal Code, George P. Fletcher

Faculty Scholarship

The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is …

Investor Education, Securities Disclosure, And The Creation And Enforcement Of Corporate Governance And Firm Norms, James A. Fanto

Faculty Scholarship

No abstract provided.

Teaching Ethics Seriously: Legal Ethics As The Most Important Subject In Law School, Russell G. Pearce

Faculty Scholarship

No abstract provided.

Racial Disparities In The Delivery Of Health Care, Barbara A. Noah

Faculty Scholarship

This Article focuses on the role of conscious and unconscious racial bias in the delivery of care; it does not begin to address the larger issue of inadequate access to care at the outset. Improving access to health care for minorities will undoubtedly have a positive effect on these groups' overall health status; however, to the extent that racial bias in the delivery of care exists apart from problems of inadequate access, the disparity in health status between whites and African Americans will no doubt continue.

Part II of this Article describes racial disparities in a variety of health care …

The Moral Of Macpherson, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Evaluating The Case For Social Security Reform: Elderly Poverty, Paternalism And Private Pensions, Maria O'Brien

Faculty Scholarship

This Article considers the many arguments currently being made in favor of Social Security pension reform and evaluates each of them in terms of the principal Congressional goal of the program-the elimination of elderly poverty-as well as more recent goals that have been articulated by subsequent commentators such as a reduction in government paternalism and the maximization of retirement income. The Article begins with a short history of the public pension program in the United States and considers at length the details of the various reform proposals that currently enjoy support. In addition it examines the enormously regressive tax structure …

Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond "Empty" Toleration To Toleration As Respect, Linda C. Mcclain

Faculty Scholarship

This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …

Human Cloning: A Choice Or An Echo, George J. Annas

Faculty Scholarship

The chant is "cloning, cloning, cloning"; but the echo is "choice, choice, choice." From all the hoopla about human cloning as a human choice it would seem that cloning must be the most important scientific issue of our age. My intent in this Commentary is not to join this chorus, but to take advantage of cloning's high visibility to explore the nature of the choice it offers. What is it that makes human cloning at once so appealing to a few and so repulsive to most? The answer, I think, can be found in Roman mythology: Cloning recalls Ovid's myth …

Partial-Birth Abortion, Congress, And The Constitution, George J. Annas

Faculty Scholarship

The political debate over abortion during the past 25 years has shifted among various dichotomous views of the world: life versus choice, fetus versus woman, fetus versus baby, constitutional right versus states' rights, government versus physician, physician and patient versus state legislature. Hundreds of statutes and almost two dozen Supreme Court decisions on abortion later, the core aspects of Roe v. Wade, 1 the most controversial health-related decision by the Court ever, remain substantially the same as they were in 1973. Attempts to overturn Roe in both the courtroom and the legislature have failed. Pregnant women still have a constitutional …

Autopoiesis And The "Relative Autonomy" Of Law, Hugh Baxter

Faculty Scholarship

Recent accounts of the relation between law and other social spheres have emphasized law's "relative autonomy." The intuition behind the "relative autonomy" formula is that law is neither wholly independent of, nor entirely reducible to, political, economic and other social processes. Sensible as this intuition is, however, the idea of "relative autonomy" by itself remains purely negative. It excludes two unpalatable extremes – pure formalism and pure instrumentalism – but it does not by itself characterize, in positive theoretical terms, the relation between law and other social discourses or practices.

This Article examines an attempt in recent German social thought …

Free Speech And Good Character, Vincent A. Blasi

Faculty Scholarship

Early proponents of the freedom of speech such as John Milton, John Stuart Mill, and Louis Brandeis emphasized the role expressive liberty plays in strengthening the character of persons entrusted with such freedom. These theorists argued that character traits such as civic courage, independence of mind, and the capacity to learn from experience and adapt are nurtured by trusting citizens with dangerous ideas. Today there is much talk about good character in relation to free speech disputes-but all on the side of those who would regulate speakers. It is time to remember that a concern about character cuts both ways …

Modern Mail Fraud: The Restoration Of The Public/Private Distinction, John C. Coffee Jr.

Faculty Scholarship

Over their long history, the mail and wire fraud statutes have gone through repeated periods of rapid expansion and contraction. The 1970s saw the flowering of the "intangible rights doctrine," an exotic flower that quickly overgrew the legal landscape in the manner of the kudzu vine until by the mid- 1980s few ethical or fiduciary breaches seemed beyond its potential reach. That doctrine was radically pruned by the Supreme Court in 1987 in the McNally decision, which held that the federal mail and wire fraud statutes reached only those schemes that intentionally sought to deprive their victims of money or …

Individual Responsibility For The Investment Of Retirement Savings: A Cautionary View, Jeffrey N. Gordon

Faculty Scholarship

These papers, including ones presented earlier this morning, raise questions about an adequate regime of consumer protection in an era in which responsibility for retirement savings and investment decisionmaking is being devolved, increasingly, to individuals. This shift to individual responsibility has also characterized many Social Security reform proposals, previously a bedrock system of publicly determined benefit levels. I find this devolution troubling; I think it is odd for individuals to have this responsibility. Individuals are not good risk bearers of market volatility, both in a financial sense and in a psychological sense. The consequence is that unless individuals are locked …

Race, Gender, And The Law In The Twenty-First Century Workplace: Some Preliminary Observations, Susan P. Sturm

Faculty Scholarship

This article seeks to move beyond the debate between informal and formal legal regulation. Both approaches reflect essential but limited components of a legal regulatory regime. Neither approach adequately responds to the simultaneous challenges of changing organizational structure, racial and gender dynamics, and market-driven demands for flexibility and adaptiveness. The next step requires that we take account of the critiques of formality and informality. This requires embracing the challenge of developing new forms of legal regulation that treat organizational decision makers and incentive structures explicitly as part of the legal regulatory regime. In this view, law consists of a set …

Playing Race Cards: Constructing A Proactive Defense Of Affirmative Action, Kimberlé W. Crenshaw

Faculty Scholarship

On behalf of the African American Policy Forum ("AAPF"), I am pleased to participate in this symposium as a co-sponsor and contributor. The AAPF, who together with Fairness and Accuracy in Reporting (FAIR) and the Women's Roundtable constitute the Women's Media Initiative, believes that events such as these are critical in efforts to map strategies for intervening in public debates surrounding affirmative action and a host of related issues such as welfare reform, racial profiling, the prison industrial complex, and the concentration of wealth, just to name a few. As one of many organizations that have taken up the defense …

Conflicts Consent And Allocation After Amchem Products – Or Why Attorneys Still Need Consent To Give Away Their Clients' Money, John C. Coffee Jr.

Faculty Scholarship

If it was the goal of Silver and Baker to write a provocative article, they have succeeded. They ask probing questions; they are appropriately scornful of superficial answers; and they seek to relate their view of legal ethics to what they perceive to be the prevailing standards in the legal marketplace. All this is good. They also usefully focus on an underappreciated dichotomy: the ethical rules governing aggregated settlements in consensual litigation versus the rules applicable in aggregated nonconsensual litigation (i.e., class actions). Essentially, they argue that the rules in both contexts should be the same or very similar, the …

Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman

Faculty Scholarship

Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, Professor Daniel Richman argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer …

Putting Sex To Work, Katherine M. Franke

Faculty Scholarship

When I was living in New Haven a number of years ago, a miracle happened that drew people by the thousands to witness evidence of the Divine. A crucifix had been found to appear in the body of an oak tree in the middle of Worchester Square. I went – after all, how often do you get to see that kind of thing? Not surprisingly, at first I couldn't see anything but the usual trunk and limbs of a tree. Yet a believer took the time to show me what was really there, something that my untrained eye could not …

Character At The Crossroads, Roger C. Park

Faculty Scholarship

No abstract provided.