Digital Commons Network^™

What’S Law Got To Do With It? The Political, Social, Psychological And Other Non-Legal Factors Influencing The Development Of (Federal) Criminal Law, Sara Sun Beale

Faculty Scholarship

No abstract provided.

A Virtuous Warrior In A Savage World, Charles J. Dunlap Jr.

Faculty Scholarship

Divining the nature of future war is always problematic. President Eisenhower warned that "Every war is going to astonish you in the way it has occurred, and in the way it is carried out." The United States must, of course, be prepared to meet a wide range of contingencies. Paramount among them would be a threat posed by a "peer competitor," that is, a state capable of battling the United States with comparable forces employing largely orthodox tactics. Although it is almost certain that one will arise in the future, no nation exists today that can challenge America symmetrically as …

Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press

Faculty Scholarship

This article is a reflection on the history and spread of the field of alternative dispute resolution (ADR). The author focuses on the increased institutionalization of ADR – particularly in relation to mediation within the court system, with examples drawn from Florida’s experience.

Learning Our Limits: The Decline Of Textualism In Statutory Cases, Lawrence Solan

Faculty Scholarship

No abstract provided.

Continuing Classroom Conversation Beyond The Well-Placed "Whys?", Bailey Kuklin, Jeffery J. Stemple

Faculty Scholarship

No abstract provided.

Sexuality, Rape, And Mental Retardation, Deborah W. Denno

Faculty Scholarship

In this article, Professor Denno addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The article first explores the early treatment of mental retardation. It next demonstrates how old stereotypes influence the moralism inherent in modern conceptions of consent in rape determinations. Illustrating the point with reference to the Glen Ridge rape case, the article shows how courts applying contemporary rape statutes typically hold mentally retarded individuals to a higher standard of consent than nonretarded individuals. As a result, courts are hurting the very people they are supposed to protect …

Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In …

Principles And Passions: The Intersection Of Abortion And Gun Rights , Nicholas J. Johnson

Faculty Scholarship

In this article, Professor Nicholas J. Johnson explores the parallels between the right of armed self-defense and the woman's right to abortion. Professor Johnson demonstrates that the theories and principles advanced to support the abortion right intersect substantially with an individual's right to armed self-defense. Professor Johnson uncovers common ground between the gun and abortion rights - two rights that have come to symbolize society's deepest social and cultural divisions - divisions that prompt many to embrace the abortion right while summarily rejecting the gun right. Unreflective disparagement of the gun right, he argues, threatens the vitality of the abortion …

Role Of Personal Values In Professional Decisionmaking, The , Bruce A. Green

Faculty Scholarship

The 1908 Canons of Professional Ethics directed a lawyer to "obey his own conscience."' Lawyers receive similar advice today. Writings on legal practice encourage lawyers to make professional decisions based on their moral values and religious beliefs, as expressed in the familiar injunction: to be charted by one's own "moral compass." Underlying this advice is an assumption about the professional norms - namely, that they accommodate, if not contemplate, lawyers' reliance on personal values. This assumption finds some support in the contemporary codes of lawyer conduct, which acknowledge a role for the lawyer's "conscience" or "moral judgment." Yet, it is …

Construction Of Race And Class Buffers In The Structure Of Immigration Controls And Laws, The Symposium: Citizenship And Its Discontents: Centering The Immigrant In The Inter/National Imigination: Part Ii: Section Three: Rethinking Agency: Global Economic Restructuring And The Immigrant, Tanya K. Hernandez

Faculty Scholarship

In the midst of current anti-immigration sentiment, which is motivating dramatic changes in the United States immigration laws, there exists the myth that prior immigration laws were more equitable and humanitarian. Yet historical analysis reveals that immigration law has been put to uses far from idyllic, and has always been concerned with the racial makeup of the nation. Specifically, national preoccupation with the maintenance of a "White country" is reflected in immigration law. The continued national preference for White immigrants is explicitly featured in the visa profiling codes of U.S. embassies and consulates. This Essay employs a race-conscious lens to …

"Prescriptive Equality": Two Steps Forward, Kent Greenawalt

Faculty Scholarship

In this Response to Professor Peters, Professor Greenawalt argues that prescriptive equality does have meaningful normative force. Prescriptive equality plays a reinforcing role when it agrees with nonegalitarian justice and is not incoherent when it pulls against nonegalitarian justice. Specifically, when one individual has been treated better than is required by nonegalitarian justice, a similarly situated and significantly related individual who is aware of that treatment may merit equivalent treatment because of widespread and deep-seated feelings about equality.

Attorney-Client Privilege, Ethical Rules, And The Impaired Criminal Defendant, The , James A. Cohen

Faculty Scholarship

Attorneys who represent possibly incompetent defendants charged with criminal conduct face difficult ethical issues, implicating professional duties of loyalty, zealous representation, and confidentiality-as an ethical question and as a matter of the law of evidence. The principles of agency underlying the attorney-client relationship are also implicated when the defendant's capacity is in doubt. In the ordinary criminal case, the client has at least implicitly authorized his lawyer's conduct. But if the defendant is impaired, the client may not have the mental capacity to authorize the attorney's actions. Defense counsel representing the possibly incompetent criminal defendant will often be the only …

Legal Coherentism, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

From Gladiators To Problem-Solvers: Connective Conversations About Women, The Academy, And The Legal Profession, Susan P. Sturm

Faculty Scholarship

Dissatisfaction permeates the public and professional discourse about lawyers and legal education. Diverse communities within and outside the profession are engaged in multiple conversations critiquing legal education and the profession itself. These conversations, though linked in subject matter and orientation, often proceed on separate tracks.

One set of conversations explicitly focuses on women and people of color, centering on their marginalization and underrepresentation in positions of power. Those concerned about race and gender exclusion often participate in separate communities of discourse. Indeed, the symposium that spawned this article framed the inquiry about higher education in terms of gender. This exclusive …

Reading Holmes Through The Lens Of Schauer: The Abrams Dissent, Vincent A. Blasi

Faculty Scholarship

Even the best scholars rarely persuade. Mostly, they illuminate. They make us more discerning readers and interlocutors.

Here I want to illustrate how Frederick Schauer's work on the law of free speech can help us to read what may be the single most influential judicial opinion ever written on that subject, Justice Holmes's famous dissent in Abrams v. United States. So far as I am aware, Schauer has not produced anything like a line-by-line parsing of the Holmes opinion. I claim nevertheless that a reader familiar with Schauer's ideas is far better prepared on that account to understand what Holmes …

Introduction, Susan P. Sturm

Faculty Scholarship

The theme of the first Symposium issue, Rethinking Law in the Twenty-First Century Workplace, addresses a fundamental challenge facing the field of labor and employment law. Existing regulatory regimes in this area are ill-equipped to address the demands of the increasingly dynamic, unstable, and technologically-driven workplace. This Symposium brought together a diverse and creative group of scholars, public policy thinkers, and activists to discuss new frameworks for participation, inclusion, evaluation, and legal regulation in the workplace. These participants represented a variety of disciplines, including law, psychology, organizational theory, sociology, and public policy. Each of the participants brought to the table …

Breast Cancer, The Genetic "Quickfix," And The Jewish Community: Ethical, Legal, And Social Challenges, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Risk In The Balance, Jay D. Wexler

Faculty Scholarship

In both academic and legislative circles, risk assessment reform is currently a hot topic. In the last decade, scholars have increasingly criticized the risk assessment procedures which administrative agencies employ to protect the public from environmental and health risks. Critics have pointed to several flaws in the current system, calling it inconsistent, undemocratic, overly decentralized, excessively rigid and unjustifiably conservative. To deal with these problems, scholars have proposed a variety of solutions. Peter Huber has urged agencies to assess risk less conservatively in order to save society from "second best" technology. Cass Sunstein and Richard Pildes have proposed injecting public …

Reefer Madness: The Federal Response To California's Medical-Marijuana Law, George J. Annas

Faculty Scholarship

Marijuana is unique among illegal drugs in its political symbolism, its safety, and its wide use. More than 65 million Americans have tried marijuana, the use of which is not associated with increased mortality. Since the federal government first tried to tax it out of existence in 1937, at least partly in response to the 1936 film Reefer Madness, marijuana has remained at the center of controversy. Now physicians are becoming more actively involved. Most recently, the federal drug policy against any use of marijuana has been challenged by California's attempt to legalize its use by certain patients on the …

Privatizing Same-Sex "Marriage" Through Alternative Dispute Resolution: Community-Enhancing Versus Community-Enabling Mediation, Clark Freshman

Faculty Scholarship

No abstract provided.

The Client Fraud Problem As A Justinian Quartet: An Extended Analysis, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

For The Liberal Transformation Of Japanese Legal Culture: A Review Of The Recent Scholarship And Practice, Setsuo Miyazawa

Faculty Scholarship

In this paper, I wish to discuss two problems. Firstly, I wish to discuss what transformation of the Japanese legal culture is desirable. Secondly, I wish to discuss how such transformation could be brought about. These questions require me to review both the scholarship and the practice. Stewart Macaulay wrote (Macaulay, 1992) that when Joel Handler went to Philadelphia in 1992 to give his presidential address at an annual meeting of the Law and Society Association and criticize postmodernist scholars for their disabling impacts on transformative politics (Handler, 1992), he rattled the cage. Handler actually rattled the cage strongly enough …

Compensation For Damage To Parties On The Ground As A Result Of Aviation Accidents, David I. Levine, Carel J. Stolker

Faculty Scholarship

No abstract provided.

The Truth About Secured Financing, Robert E. Scott

Faculty Scholarship

The debate over the social value of secured credit (and the appropriate priority for secured claims in bankruptcy) is entering its nineteenth year. Yet the continuing publication of succeeding generations of articles exploring the topic have yielded precious little in the way of an emerging scholarly consensus about the nature and function of secured credit. Put simply, we still do not have a theory, of finance that explains why firms sometimes (but not always) issue secured debt rather than unsecured debt or equity. Moreover (and perhaps because of the lack of any plausible general theory), we lack any persuasive empirical …

The Evolution Of Adolescence: A Developmental Perspective On Juvenile Justice Reform, Elizabeth S. Scott, Thomas Grisso

Faculty Scholarship

The legal response to juvenile crime is undergoing revolutionary change, and its ultimate shape is uncertain. The traditional juvenile court, grounded in optimism about the potential for rehabilitation of young offenders, has long been the target of criticism, and even its defenders have been forced to acknowledge that it has failed to meet its objectives. Beginning in the late 1960s, when the Supreme Court introduced procedural regularity to delinquency proceedings in In re Gault, courts and legislatures began to slowly chip away at the foundations of the juvenile justice system. Recent developments have accelerated and intensified that process, as …

Golden Rules For Transboundary Pollution, Thomas W. Merrill

Faculty Scholarship

Environmental law is becoming ever more centralized. In the United States, state and local pollution laws have been eclipsed by federal regulation. In the European Community, and to a lesser degree under the North American Free Trade Agreement (NAFTA), national controls have been supplemented by regional regulation. And the growing importance of treaties regulating particular aspects of the global environment has reinforced calls for more general regimes of international environmental regulation.

One inevitably given justification for this centralizing trend is that pollution is a transboundary phenomenon. Air and water pollution, and to a lesser extent groundwater contamination, can cross political …

Recent Legislation: Constitutional Law – Congress Imposes New Restrictions On Use Of Funds By The Legal Services Corporation – Omnibus Consolidated Rescissions And Appropriations Act Of 1996, Pub. L. No. 104-134, 110 Stat. 1321, Benjamin L. Liebman

Faculty Scholarship

Fierce political battles have raged about the Legal Services Corporation (LSC) for much of its twenty-three year history. Critics have attacked LSC for pursuing a "radical agenda" and for "engaging in dubious litigation that is of no real benefit to poor people," while supporters have termed LSC "the one program in the entire war on poverty that made a difference" and have decried the "campaign to deny the right of legal representation to the poor." Last year, in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (OCRAA), Congress reduced LSC funding by thirty percent – to $278 million in …

Asteroids And Comets: U.S. And International Law And The Lowest-Probability, Highest Consequence Risk, Michael B. Gerrard, Anna W. Barber

Faculty Scholarship

Asteroids and comets pose unique policy problems. They are the ultimate example of a low probability, high consequence event: no one in recorded human history is confirmed to have ever died from an asteroid or a comet, but the odds are that at some time in the next several centuries (and conceivably next year) an asteroid or a comet will cause mass localized destruction and that at some time in the coming half million years (and conceivably next year), an asteroid or a comet will kill several billion people. The sudden extinction of the dinosaurs, and most other species 65 …

Old Chief V. United States: Stipulating Away Prosecutorial Accountability?, Daniel Richman

Faculty Scholarship

Earlier this year, in Old Chief v. United States, the Supreme Court finally resolved a circuit split on a nagging evidentiary issue: When a defendant charged with being a convicted felon in possession of a firearm offers to satisfy one of the statute's elements by stipulating to the existence of a prior felony conviction, may the government decline the stipulation and prove the existence and the nature of that prior felony?

The question of evidence law resolved in Old Chief is not particularly earth-shattering. Indeed, while the Court divided five to four on the issue, neither Justice Souter's opinion …

Territoriality, Risk Perception, And Counterproductive Legal Structures: The Case Of Waste Facility Siting, Michael B. Gerrard

Faculty Scholarship

The siting of hazardous and nuclear waste facilities has proven to be a task of enormous difficulty in our federal system. In this Article, the Author argues that one of the major causal factors for this difficulty is that the legal regime surrounding waste facility siting decisions is not structured in a manner sensitive to the human factors involved. The siting of a hazardous waste facility is likely to generate a negative community response where the imposition of externally made decisions and externally generated wastes fails to take into account the innate human trait of territoriality. Territoriality is a powerful …