Digital Commons Network^™

The Victims Of Nimby, Michael B. Gerrard

Faculty Scholarship

It is a syndrome, a pejorative, and an acronym of our times: NIMBY, or Not In My Back Yard. It has a political arm, NIMTOO (Not In My Term Of Office), an object of attack, LULUs (Locally Undesired Land Uses), and an extreme form, BANANA (Build Absolutely Nothing Anywhere Near Anyone). Acronyms aside, however, the question remains as to whether or not NIMBY has victims. Is anyone hurt by NIMBY?

Many leading voices in the environmental justice movement believe that minority communities are victims of NIMBY. For example, Professor Robert D. Bullard has written that "[t]he cumulative effect of not-in-my-backyard …

Gay Rights Through The Looking Glass: Politics, Morality, And The Trial Of Colorado's Amendment 2, Suzanne B. Goldberg

Faculty Scholarship

Courts have long struggled to resolve the question of how far a community may go in exercising its power to treat minority members differently. Popular prejudice, "community morality" and invidious stereotypes repeatedly have had their day in court as judges work to reconcile equal protection and privacy rights with their own attitudes about the place of people of color, women and gay people in society. In the early 1990s, the tension between the American ideal of equality and the reality of human diversity starkly emerged. A national wave of citizen-sponsored initiatives seeking to amend state constitutions and local charters to …

Facing The Challenge: A Lawyer's Response To Anti-Gay Initiatives, Suzanne B. Goldberg

Faculty Scholarship

We are living in an extraordinary period of gay and lesbian history. As lesbian and gay civil rights gain increasing recognition throughout the country – through small but growing numbers of laws prohibiting sexual orientation discrimination, court rulings protecting lesbian and gay parents' custody of their children, and a historically unprecedented level of positive media coverage – our struggles also have escalated enormously. Not only must we litigate and negotiate for equal opportunity in employment, housing, and parenting rights as always, but also we face a nationally organized and terrifically well-funded assault on our fundamental rights as citizens.

This nationwide …

Democracy And Domination In The Law Of Workplace Cooperation: From Bureaucratic To Flexible Production, Mark Barenberg

Faculty Scholarship

In May of 1993, President Clinton's Commission for the Future of Worker-Management Relations began its investigation of whether a major overhaul of United States labor law is necessary to encourage high-performance workplaces and labor-management cooperation. Even if its recommendations, due in November 1994, do not yield immediate congressional fruit, the Commission's work is likely to influence the study and politics of labor law reform for some time to come. The Commission is chaired by John Dunlop, the eminent labor-relations specialist and former Secretary of Labor. Its membership includes some of the nation's foremost academic and political proponents of far-reaching labor …

Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that …

Institutions As Relational Investors: A New Look At Cumulative Voting, Jeffrey N. Gordon

Faculty Scholarship

The hostile takeover may have become a receding memory, but the problem that the market in corporate control purported to address nevertheless remains. In a world of imperfect competition, the product, capital, and managerial markets may temporarily indulge suboptimal performance by a firm's managers. As cases such as GM, Sears, American Express, and IBM illustrate, a firm with a substantial franchise and substantial financial reserves can sustain deteriorating economic performance over a significant period, resulting in a long slow slide of economic values. Shareholders and society generally will benefit from a mechanism that replaces the firm's incumbent managers well before …

Fear And Loathing In The Siting Of Hazardous And Radioactive Waste Facilities: A Comprehensive Approach To A Misperceived Crisis, Michael B. Gerrard

Faculty Scholarship

Few laws have failed so completely as the federal and state statutes designed to create new facilities for the disposal of hazardous and radioactive waste. Despite scores of siting attempts and the expenditure of several billion dollars since the mid-1970s, only one radioactive waste disposal facility, only one hazardous waste landfill (in the aptly named Last Chance, Colorado), and merely a handful of hazardous waste treatment and incineration units are operating on new sites in the United States today.

In 1981, a leading member of Congress, relying on data from the U.S. Environmental Protection Agency (EPA), predicted that by 1985 …

The Dark Secret Of Progressive Lawyering: A Comment On Poverty Law Scholarship In The Post-Modern, Post-Reagan Era, William H. Simon

Faculty Scholarship

In 1971, Stephen Wexler argued in "Practicing Law for Poor People" that what poverty lawyers should be doing was, in a word, organizing. I Wexler flaunted a tough-minded disdain, not only for individual claim assertion, but also for the purely individual concerns of particular clients. Instead, he advocated efforts to assist the poor to collective power.

In his 1977 diagnosis of the state of poverty practice, Gary Bellow argued that what legal services lawyers should be doing was "focused case pressure." He proposed aggregating small housing or welfare claims in order to generate pressure on institutions engaged in systemic misconduct …

What Is Punishment Imposed For?, George P. Fletcher

Faculty Scholarship

The institution of punishment invites a number of philosophical queries. Sometimes the question is: How do we know that inflicting discomfort and disadvantage is indeed punishment? This is a critical question, for example, in cases of deportation or disbarment proceedings. Classifying the sanction as punishment triggers application of the Sixth Amendment and its procedural guarantees. In other situations the question might be: Why do we punish? What is the purpose of making people suffer? In this context, we encounter the familiar debates about the conflicting appeal of retribution, general deterrence, special deterrence, and rehabilitation.

In this article I wish to …

Reflections Inspired By My Critics, Philip Chase Bobbitt

Faculty Scholarship

The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is justification.

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other purposes.

By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and legitimation. …

Death By Prescription, George J. Annas

Faculty Scholarship

Society and physicians in the United States remain unable to accept death and thus unable to deal with the physical, psychological, and spiritual approach of death. The hour of death itself “is commonly tranquil,” but “the serenity is usually bought at a fearful price -- and the price is the process by which we reach that point” -- a process that has been described as “a purgatory that may last for weeks.” Suicide has been seen as a rational way to avoid that purgatory, especially as a response to end-stage cancer and AIDS, and proposals to “legalize” physician-assisted suicide in …

Check Your Crystal Ball At The Courthouse Door, Please: Exploring The Past, Understanding The Present, And Worrying About The Future Of Scientific Evidence, David L. Faigman, Elise Porter, Michael J. Saks

Faculty Scholarship

No abstract provided.

Land, Law, And Legitimacy In Israel And The Occupied Territories, George Bisharat

Faculty Scholarship

No abstract provided.

Reflections On Judge Weinstein's Ethical Dilemmas In Mass Tort Litigation, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Sentencing: Capital Punishment, Jodi L. Short, Mark D. Spoto

Faculty Scholarship

No abstract provided.

Evaluating Ethics Committees: A View From The Outside, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Just The Facts, Ma'am: Lying And The Omission Of Exculpatory Evidence In Police Reports,, Stanley Z. Fisher

Faculty Scholarship

George Jones's ordeal was the product of, and in turn sheds light upon, police practices of investigating crimes and writing reports. Written police reports of criminal incidents and arrests give details such as the time, place, and nature of criminal conduct; the names and addresses of victims and witnesses; physical characteristics of the perpetrator(s) or arrestee(s); weapons used; property taken, recovered, or seized from the arrestee; and injuries to persons and property. Through their reports, the police "have fundamental control over the construction of [the] 'facts' for a case, and all other actors (the prosecutor, the judge, the defense lawyer) …

The Government Contractor Defense, David J. Stout

Faculty Scholarship

Litigation involving defective products has increasingly become a pre-trial battle to overcome a series of technical defenses that have become a stock part of the manufacturer's defense.

Defendants invariably raise the government contractor defense where the defective product resulted from some governmental involvement in the manufacturing process, no matter how peripheral or superfluous was the government's involvement in that process.

The defense by its nature only applies to design defect cases. A defect in the manufacturing process is not protected by the defense.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Faculty Scholarship

The first part of this Comment will present the historical and theological views towards suicide. This background material will be helpful in understanding present-day society's response to the assisted suicide debate by tracing many of the condemnations back through common law development. The second portion of this Comment will focus on the current status of the assisted suicide debate. Although most courts have passed on the issue" and most legislatures do not have laws addressing assisted suicide, there is a great deal of activity shaping the legal future of this topic. This section emphasizes the importance of key nonlegal players …

Reproduction And Parenting, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

R. V. Parks: Automatism And Murder, Laura Spitz, Isabel Grant

Faculty Scholarship

In R. v. Parks' the Supreme Court of Canada had the opportunity to clarify the test for distinguishing between insane and non-insane automatism and to locate sleep-walking, or somnambulism, within this dichotomy. Its judgments accomplished neither purpose satisfactorily and thus the case is more striking for its unusual facts than for its advancement of the law. The question before the Supreme Court of Canada was simple: was Parks entitled to an absolute acquittal on the basis that his acts were involuntary, or was the involuntariness caused by a disease of the mind, thus leaving him only with the defence of …

Creating A Classroom Component For Field Placement Programs: Enhancing Clinical Goals With Feminish Pedagogy, Linda H. Morton

Faculty Scholarship

This article supports the use of feminist pedagogy to provide the ideal environment for engaging clinic students in self-learning. The author describes the complementary relationship between clinic goals and feminist pedagogy, illustrated through her use of a student-facilitated and non-hierarchical teaching model in her externship classes. The model used provides a unique and valuable educational environment for the training of prospective professionals.

Teach Your Students Well: Valuing Clients In The Law School Clinic., Ann Juergens

Faculty Scholarship

Law schools, teaching primarily by the casebook method, generally avoid the thorny issues that real clients pose.' Recently, however, law review articles and the ""regular classroom"" have referred more frequently to real client stories. Law school clinics are a primary source of client stories. Despite increased attention to clinical programs, client interests are frequently subordinated to the goals of students, clinical law teachers and law schools. This article urges clinicians to constantly evaluate whether and how well they and their students take their clients' interests and perspectives on clinical education into account. It argues that clinic teachers must learn to …

Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer

Faculty Scholarship

The authors' concern that domestic violence reform statutes might not be having their intended effect sparked their decision to evaluate the protective order statutes empirically. The authors therefore distributed a lengthy survey to 843 domestic violence organizations nationwide that helped battered women obtain protective orders. The survey focused on three issues. The first issue was access to the courts: Is the protective order remedy accessible to battered women? The second issue related to the procedures for obtaining orders of protection: Are judges granting orders in appropriate cases, and are they awarding the full range of remedies contemplated by the reform …

The Eclipse Of Reason: A Rhetorical Reading Of Bowers V. Hardwick, Kendall Thomas

Faculty Scholarship

In a careful and compelling reading of the text of the Supreme Court's opinion in Bowers v. Hardwick, Janet Halley provides a meticulous map of the misprisions by which the Hardwick Court "exploit[s] confusion about what sodomy is in ways that create opportunities for the [judicial] exercise of homophobic power." According to Professor Halley, the duplicitous mechanisms the Hardwick Court marshals in reasoning about sodomy entail a mobilization of two "incommensurable articulations": the idea of the sodomitical act, on the one hand, and that of personal identity, on the other.

Professor Halley rightly insists that an anti-homophobic critique …

He's Gotta Have It, Carol Sanger

Faculty Scholarship

In 1929, James Thurber and E.B. White observed that

[d]uring the past year, two factors in our civilization have been greatly overemphasized. One is aviation. The other is sex.... In the case of aviation, persons interested in the sport saw that the problem was to simplify it and make it seem safe.... With sex, the opposite was true.... The problem in this case was to make sex seem more complex and dangerous. This task was taken up by sociologists, analysts, gynecologists, psychologists, and authors.... They joined forces and made the whole matter of sex complicated beyond [our wildest dreams].... Sex, …

Finessing The Siting Conundrum, Michael B. Gerrard

Faculty Scholarship

There is a place that today's industrial society desperately wishes to find. In prior eras, people sought Nirvana or the Fountain of Youth or Shangri-La – states of mind (or nothingness) as much as places, really. The object of today's quest has no neighbors, no endangered or threatened species, no hydraulic link to precious groundwater; ideally, it has no connection to the biosphere at all.

That place is called "away," as in, "Let's dig up this contamination and haul it away," or, "We need to take this waste away." The public and private sectors in the United States have spent …

A Morality Fit For Humans, Joseph Raz

Faculty Scholarship

I believe that it was opposition to utilitarianism which first bred arguments claiming in one way or another that a view of morality according to which morality is very demanding is mistaken just be-cause morality cannot be so demanding. On first hearing, this type of argument is liable to seem suspect. Humans should be fit for morality, and unfortunately too often they are not – one is inclined to say. If we find morality too demanding the fault is with us and not with morality. The idea of human morality, in the sense of a morality fit for humans …

Gendering And Engendering Process, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.