Digital Commons Network^™

Against The Tyranny Of Paraphrase: Talking Back To Texts, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

Why There Should Be An Independent Decennial Commission On The Press, Lee C. Bollinger

Faculty Scholarship

In 1947, the Commission on Freedom of the Press chaired by Robert M. Hutchins, published its report entitled "A Free and Responsible Press:" Sharply criticized by the media when published, the Hutchins Commission Report (as it has come to be known) seems to have assumed only minor status within the history of freedom of the press in this century, as well as among reports on social problems generally. In this article, I will consider whether the Hutchins Commission Report deserves a different fate. Given the media's usually astounding self-preoccupation, the fact that the Report was about the "press" would lead …

Blackmail: The Paradigmatic Crime, George P. Fletcher

Faculty Scholarship

The ongoing debate about the rationale for punishing blackmail assumes that there is something odd about the crime. Why, the question goes, should demanding money to conceal embarrassing information be criminalized when there is nothing wrong with the separate acts of keeping silent or requesting payment for services rendered? Why should an innocent end (silence) coupled with a generally respectable means (monetary payment) constitute a crime? This supposed paradox, however, is not peculiar to blackmail. Many good acts are corrupted by doing them for a price. There is nothing wrong with government officials showing kindness or doing favors for their …

Give Me Liberty Or Give Me Death: Political Asylum And The Global Persecution Of Lesbians And Gay Men, Suzanne B. Goldberg

Faculty Scholarship

In a time marked by dramatic global change, women and men persecuted because they are lesbian or gay form part of the growing pool of international refugees. Their persecution takes the form of police harassment an assault, involuntary institutionalization and electroshock and drug "treatments," punishment under laws that impose extreme penalties including death for consensual lesbian or gay sexual relations, murder by paramilitary death squads, and government inaction in response to criminal assaults against lesbians and gay men. The survival of these women and men, like the survival of all refugees, depends on obtaining asylum outside the home country. Yet, …

Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt

Faculty Scholarship

This Article addresses three perplexing problems about proposed principles of self-restraint for political decision and advocacy within liberal democracies. It considers the nature of convictions that are based on highly personal experiences and asks what their political status should be. It explores the subtle relationship between proposed principles of restraint and overarching religious and other comprehensive views. It argues that a plausible principle of restraint must appeal to people with various religious and other comprehensive views and must be suited to the particular conditions of a given society.

The Promise Of Participation, Susan P. Sturm

Faculty Scholarship

Professor Owen Fiss's seminal work, The Civil Rights Injunction, inspired a generation of scholars and practitioners to flesh out the significance of his insights. With remarkable prescience, he captured a moment in intellectual and legal history and created a vocabulary that continues to shape the debate over the court's role in public law litigation. The Allure of Individualism continues the Fiss tradition of capturing a singular, emblematic issue and sketching with broad strokes the contours of emerging debate. His springboard is Martin v. Wilks, a case that aptly frames the current dilemmas and choices posed by structural injunction litigation. Martin …

Enslaved To Judicial Supremacy?, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Editing, Carol Sanger

Faculty Scholarship

In May 1993, I published a book review of Richard Posner's Sex and Reason. The review was modest in length and in purpose, part of an informal division of labor undertaken by the many critics of Sex and Reason. It challenged Judge Posner's claim that an economic analysis of sex was something new and argued that women have been making rational choices with regard to sex and reproduction for quite a long time, something that Judge Posner's book seemed to miss and misunderstand throughout.

Readers of the review (the members of my MCI Friends and Family Plan) have …

Chaos Theory And The Justice Paradox, Robert E. Scott

Faculty Scholarship

"[T]he laws have mistakes, and you can't go writing up a law for everything that you can imagine."

"When you reach an equilibrium in biology you're dead."

As we approach the Twenty-First Century, the signs of social disarray are everywhere. Social critics observe the breakdown of core structures – the nuclear family, schools, neighborhoods, and political groups. As these traditional social institutions have disintegrated, the law has expanded to fill the void. There are more laws, more lawyers, and more use of legal mechanisms to accomplish social goals than at any other time in history. The custodians and interpreters of …

Cunning Stunts: From Hegemony To Desire A Review Of Madonna's Sex, Katherine M. Franke

Faculty Scholarship

What is sex? Is it an accidental or contingent property that every person can be said to have? I am brunette and female, but the Pope is bald and male. Or, is sex more constitutive, that is, an essential part of who we are? In this respect, the claim is often made that women experience the world ditfierently than men. Or, is sex something we do?

If we consider sex as an adjective, can we or should we be able to manipulate it like a new hair style? Or does the notion of sexual malleability trivialize the significance …

New Myths And Old Realities: The American Law Institute Faces The Derivative Action, John C. Coffee Jr.

Faculty Scholarship

Nothing in The American Law Institute's (ALI) Principles of Corporate Governance: Analysis and Recommendations (Principles) proved more controversial than the effort to develop fair and balanced standards for the derivative action. Only the topic of corporate takeovers seems to evoke an equally intense level of emotion among corporate lawyers. Not surprisingly then, Part VII (Remedies) of the Principles attracted the same attention from critics that a lightning rod does in a thunderstorm.

Unlike other ALI Restatements, however, the Principles also encountered a professional opposition, which lobbied against its adoption, both inside and outside the ALI, on behalf of various outside …

Feminism And Disciplinarity: The Curl Of The Petals, Carol Sanger

Faculty Scholarship

In this Symposium, feminism has been invited to take a place alongside such well-established disciplines as history, philosophy, and economics in a consolidated exploration of interdisciplinary approaches to law. While sincerely extended – the feminist entry is not the only one that women are writing – and generously unbounded as to scope, ... the invitation raises what for many is a prior question: Is feminism a discipline at all?

As the feminist delegate to this interdisciplinary Symposium, I have therefore taken as my initial task consideration of the issue implicit in the invitation: feminism's credentials as a discipline. I explore …

A Property Right In Self-Expression: Equality And Individualism In The Natural Law Of Intellectual Property, Wendy J. Gordon

Faculty Scholarship

This Article argues that a properly conceived natural-rights theory of intellectual property would provide significant protection for free speech interests. This is more than just an academic exercise. Judges have failed to use the First Amendment to provide extensive protection for free expression in intellectual property cases, in part because they mistakenly find a warrant for strong "authors' rights" in a philosophy of natural law. Natural rights theory, however, is necessarily concerned with the rights of the public as well as with those whose labors create intellectual products. When the limitations in natural law's premises are taken seriously, natural rights …

The Poverty Of Academic Rhetoric, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Longterm Strategies In Japanese Environmental Litigation, Setsuo Miyazawa

Faculty Scholarship

Japan's reputation for unusually strong emphasis on the avoidance of public conflict and therefore for de-emphasis of legal institutions suggests an arid, hostile environment for litigators, especially those who lack substantial resources. In a study of a quasi-class action lawsuit by Japanese air pollution victims, we find that litigation can be developed as a tool in the pursuit of a social movement's wider objectives despite the paucity of resources within the Japanese legal system. Our research documents the many ways in which the delays, obstacles, and costs that characterize the litigation environment in Japan have been either neutralized or turned …

The Supreme Court, Abortion, And The Jurisprudence Of Class, Wendy K. Mariner

Faculty Scholarship

The US Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v Casey both protects a woman's liberty to choose to terminate her pregnancy and permits the state to make it more difficult for her to exercise her choice. In their opinion on the case, Justices O'Connor, Kennedy, and Souter eloquently defend constitutional protection of the right to make intimate decisions like continuing or ending a pregnancy. At the same time, they permit the state to try to persuade pregnant women not to have abortions and to make abortion harder to obtain and more costly, as long as the state's …

Thelma And Louise And Bonnie And Jean: Images Of Women As Criminals, Susan Herman

Faculty Scholarship

No abstract provided.

Mandatory Prelicensure Legal Internship: An Idea Whose Time Has Come Again, Stephen R. Alton

Faculty Scholarship

This Article explores the wisdom of imposing an internship requirement on aspiring lawyers as a prerequisite for licensure. It is my position that such a requirement can be beneficial to the new attorney, to the profession, and to the public and should thus be mandated for all those who seek admission to the practice of law. This Article begins by briefly examining the history in the United States of law-office, apprenticeship as a means of legal education. I then proceed to an examination of modern internship requirements in England and Canada. There follows a discussion of some of the more …

Efficiency And Individualism, Gary S. Lawson

Faculty Scholarship

Law and economics-the systematic application of neoclassical price theory to legal problems 1 -has dominated the legal academy in recent years. One recent study found that law and economics "for several decades appears to have pervaded about one quarter of scholarship in elite law reviews,"2 and that figure may seriously understate the theory's influence.3 A number of justifiably wellregarded scholarly journals devote themselves almost exclusively to economic analysis of law, and the subject is now a regular part of law school curricula.' Perhaps most importantly, law and economics is a pervasive and influential presence in informal academic discussions. Even legal …

Personal Narratives And Racial Distinctiveness In The Legal Academy, Maria O'Brien

Faculty Scholarship

A small group of legal academicians is embroiled in yet another debate that, to the uninitiated at least, appears to have little or nothing to do with "the law." ¹ This time the issue is the ideology of legal writing style-that is, does a growing, unique body of legal scholarship that draws on the personal experiences of minority faculty and, arguably, reflects the racial oppression these scholars have suffered, produce "distinct normative insights?" ² Professor Patricia Williams of the University of Wisconsin clearly believes that it does.

In her new book, The Alchemy of Race and Rights,³ which is …

Particularity And Generality: Challenges Of Feminist Theory And Practice In Work On Woman-Abuse, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Reality As Artifact: From Feist To Fair Use, Wendy J. Gordon

Faculty Scholarship

Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "it's a fact that X happened," the speaker usually means, "I believe the thing I describe has happened in the world." But when a litigator presents something as a "fact," she often means only that a good faith argument can be made on behalf of its existence. Two sets of factfinders can look at the same event and come to diametrically opposed conclusions-each of which is binding, but …

"Atomistic Man" Revisited: Liberalism, Connection, And Feminist Jurisprudence, Linda C. Mcclain

Faculty Scholarship

One of the major strains of feminist jurisprudence has criticized American law, and the liberal jurisprudence and political philosophy on which it is said to be grounded, as male or masculine.' A central theme of the critique has been that the law embodies a masculine perspective in emphasizing autonomy and the individual over interdependency and the community. Liberalism has been viewed as inextricably masculine in its model of separate, atomistic, competing individuals establishing a legal system to pursue their own interests and to protect them from others' interference with their rights to do so. Hence, it is said that liberal, …

A Look At God, Feminism, And Tort Law, Randy Lee

Faculty Scholarship

No abstract provided.

A Letter To A Female Colleague, Anita Bernstein

Faculty Scholarship

No abstract provided.

Contradiction And Revision: Progressive Feminist Legal Scholars Respond To Mary Joe Frug, Elizabeth M. Schneider, Judi Greenberg, Martha Minow

Faculty Scholarship

No abstract provided.

Self-Paternalism In The Marketplace, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Addressing Recidivism: Legal Education In Correctional Settings, Justin P. Brooks

Faculty Scholarship

No abstract provided.

Civil Actions For Emotional Distress And R.A.V. V. City Of St. Paul, Michael K. Steenson

Faculty Scholarship

The law of emotional distress is characterized by judicial reluctance to create and expand remedies for emotional injuries. The issue here is whether the Court's decision in R.A.V. v. City of St. Paul will impose further limitations on the right to recover civil damages for the intentional infliction of emotional injury, particular emotional injuries resulting from hate speech. This symposium first examines the applicability of the tort to redress claims based on abusive epithets based on the victim's race, gender, or sexual orientation. The symposium then argues that using this tort in cases involving hate speech should not create constitutional …

Long Overdue: The Single Guaranteed Minimum Income Program, David Allen Larson

Faculty Scholarship

This article provides an overview of income support programs in the United States. The article first examines proposals for a guaranteed income. This initial examination consists of four separate sections. It begins with a summary of negative income tax plans. Second, it discusses legislation introduced in the United States Congress. Third, current guaranteed income proposals are examined. Finally, it concludes with a brief examination of social experiments conducted in several communities. Because no proposal for a comprehensive guaranteed income program has been adopted, this article next discusses the income maintenance programs including a short description and selected statistical information.