Digital Commons Network^™

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

Faculty Scholarship

No abstract provided.

The Gaps Between The Fingers Of The Invisible Hand, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Reasonable Woman And The Ordinary Man, Carol Sanger

Faculty Scholarship

Nineteen ninety-one was a seismic year for sexual harassment. The first localized shift occurred in January, when the Ninth Circuit established that the standard by which sexual harassment in the workplace would be judged was no longer the reasonable man or even the reasonable person but rather the reasonable woman. In October a larger audience felt a much stronger jolt when Anita Hill spoke before the Senate Judiciary Committee.

Hill testified that Supreme Court nominee Clarence Thomas had sexually harassed her while she worked for him at the Department of Education and at the Equal Employment Opportunity Commission. Her testimony …

Free Speech In The United States And Canada, Kent Greenawalt

Faculty Scholarship

This comparison of freedom of speech in the United States and Canada concentrates on Supreme Court decisions in the two countries and on kinds of speech mainly engaged in by extreme dissenters and political outsiders. After brief comments about constitutional language and general approaches, I discuss subversive speech and other speech that encourages criminal acts, hate speech, symbolic speech, and public demonstrations.

In both countries, a major premise of modern adjudication is that freedom of expression is a central feature of liberal democracy. Government "by the people," even in the extended sense of government by representatives, requires that citizens openly …

Procedural Due Process Rights Of Incarcerated Parents In Termination Of Parental Rights Proceedings: A Fifty State Analysis, Philip Genty

Faculty Scholarship

Disruption of families through incarceration of parents has become an increasingly serious problem over the past decade. The prison population has grown dramatically, and for women prisoners the increases in the population are particularly striking. From 1980 through 1990, the number of women incarcerated in state and federal prisons increased from 13,420 to 43,845, an increase of 227 percent. In a single year, from 1988 to 1989, the number of incarcerated women increased by 24.4 percent. In 1990 there were an additional 37,844 women in local jails. For men the prison population increased by 130 percent from 316,401 to 727,398 …

Law As Discourse, George P. Fletcher

Faculty Scholarship

Legal theory has traditionally taken the use of sanctions to be a characteristic feature of any legal order. Positivists like John Austin take the notion of commands backed by threats to be the essence of law. Yet even those who scorn positivism, like Immanuel Kant, are equally committed to the view that the sovereign must enforce positive legal rules by punishing those who violate them.

This emphasis on sanctions has always struck me as a bit curious. It is not irrelevant to the understanding of legal phenomena, but it does seem to have been exaggerated in philosophical efforts to understand …

The Third Man, Philip C. Bobbitt

Faculty Scholarship

Sandy is a divided man. On the one hand he is captivated by the notion of the theoretical and the explanatory, an idea that has captivated all of us since the 17th century. For Descartes, for Newton, for Freud, for Marx, for Levinson: theory is the foundation for understanding, and understanding for practice. How do they calculate the attraction among the planets? They apply the inverse square law according to the theories of Newton. How does Freud cure his patients: he explains to them why they've been behaving so peculiarly; he does this by expositing his theory. How does Marx …

The End Of New York Times V Sullivan: Reflections On Masson V New Yorker Magazine, Lee C. Bollinger

Faculty Scholarship

Virtually every year since New York Times v Sullivan, the Supreme Court has decided at least one or two First Amendment cases involving the press. This now seemingly permanent, annual pageant of media cases undoubtedly has significance for the development of both constitutional law and the character of American journalism, though oddly that significance has been little explored in the scholarly literature. This past year the Court had two cases, both of which received an unusual amount of discussion within the press. It is, of course, understandable, even if not wholly defensible, for the press to give disproportionate coverage …

What Can You Say, Where Can You Say It, And To Whom?: A Guide To Understanding And Preventing Unlawful Sexual Harassment, David Allen Larson

Faculty Scholarship

After an increase in visibility for sexual harassment cases in 1991, employers have had to treat allegations of sexual misconduct more seriously now that juries have the authority to award both compensatory and punitive damages. Many employers and employees remain confused, however, as to what conduct is considered unlawful sexual harassment. This article explains how courts have analyzed allegations of unlawful sexual harassment under Title VII of the Civil Rights Act of 1964 by discussing what a court must find before it will impose liability. In response to the very real and immediate demand for a straightforward discussion of the …

Law And Literature: Representing Lesbians, Anne B. Goldstein

Faculty Scholarship

What is involved in representing a lesbian in law or in literature? The premise of this Article is that the work of novelists is enough like the work of lawyers that useful insights can be drawn in at least one direction. That is, lawyers can learn how to represent lesbian clients better by studying books with lesbian characters.

Public Life And Hostility To Religion, Frederick Mark Gedicks

Faculty Scholarship

Many who value the contributions of religion to American life have contended that American public life is hostile to religion. They perceive many of the Supreme Court's Religion Clause opinions as hostile to religion, and circulate anecdotes about the antireligious hostility of public life. Studies also suggest that some of the principle actors in American public life systematically marginalize religious viewpoints relative to secular ones. Nevertheless, others are baffled by the suggestion that public life discriminates against religion. These people note that religion is deeply (if controversially) involved in much of contemporary American politics, and dismiss anecdotes about such hostility …

"Death Is Different" And Other Twists Of Fate, Deborah W. Denno

Faculty Scholarship

Professor Welsh White's book, The Death Penalty in the Nineties, reviews those United States Supreme Court decisions and developments that have occurred in the four years since the publication of his earlier book, The Death Penalty in the Eighties. In The Nineties, White claims that these recent developments, which have significantly limited capital defendants' habeas corpus appeals, are likely to increase both the rate and the geographical reach of executions which, in the past, have occurred mostly in the South. After discussing some of the analytical and methodological shortcomings of The Nineties, this review will focus on The Nineties' most …

You Can Take Them To Water But You Can’T Make Them Drink: Black Legal Scholarship And White Legal Scholars, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Proof In Law And Science, David H. Kaye

Faculty Scholarship

This article addresses proof in both science and law. Both disciplines utilize proof of facts and proof of theories, but for different purposes and, consequently, in different ways. Some similarities exist, however, in how both disciplines use a series of premises followed by a conclusion to form an argument, and thus constitute a logic. This article analyzes the ways in which legal logic and scientific logic differ. Finding facts in law involves the same logic but quite different procedures than scientific fact-finding. Finding, or rather constructing, the law is also very different from scientific theorizing. But such differences do not …

Tort Liability For Physical Injuries Allegedly Resulting From Media Speech: A Comprehensive First Amendment Approach , Andrew B. Sims

Faculty Scholarship

No abstract provided.

Jewish Lawyering In A Multicultural Society: A Midrash On Levinson Colloquy, Russell G. Pearce

Faculty Scholarship

When we acknowledge the contradiction between the project's goal and the reality of group influence, we are led to consider the alternative strategy of creating community. Such a strategy would invite lawyers to begin a community dialogue regarding how each of our group identities, and the responses of others to our identities, interfere with our efforts to realize the goal of equal justice. While significant to the understanding of group dynamics, consideration of Jewish lawyering probably has limited value as a predictor of an individual lawyer's professional conduct. The actual and potential influence of Jewishness on lawyering is quite diverse, …

Rorty, Radicalism, Romanticism: The Politics Of The Gaze, Joan C. Williams

Faculty Scholarship

No abstract provided.

Apocalypse Next Time?: The Anachronistic Attack On Habeas Corpus/Direct Review Parity, James S. Liebman

Faculty Scholarship

Today, a district court's habeas corpus review of the constitutionality of a state criminal conviction and the Supreme Court's direct review of the same question are nearly identical. Last Term, in Wright v. West, an otherwise mundane criminal procedure case, the Supreme Court rewrote the question presented to ask whether the parity between federal habeas corpus and direct appellate review should be destroyed. The Court proposed abandoning in habeas corpus an important trait shared by the two modes of review – de novo consideration of legal and mixed legal-factual questions.

To those who value meaningful habeas corpus review, the …

Minor Changes: Emancipating Children In Modern Times, Carol Sanger, Eleanor Willemsen

Faculty Scholarship

Parents and their teenage children don't always get along. At some time during adolescent development, parents may turn into embarrassments and teenagers into domestic terrorists. For most families this is a phase. Adolescence is endured, the child accomplishes some degree of separation from parents, and the transition to adulthood advances.

In some families, however, the period is more like a siege than a phase. Conflict may last longer and be more strifeful, more intense. If the family is incapable or unwilling to resolve the tensions, an intractability may set in. In these cases, domestic tranquility seems attainable only when the …

Plea-Bargaining As A Social Contract, Robert E. Scott, William J. Stuntz

Faculty Scholarship

Most criminal prosecutions are settled without a trial. The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority …

Judgment And Reasoning In Adolescent Decisionmaking, Elizabeth S. Scott

Faculty Scholarship

Few people believe that five year olds and fifteen year olds think, act or make decisions in the same way. The question is whether and how the law should respond to developmental differences. Traditionally, childhood and adulthood have been two dichotomous legal categories, demarcated by the age of majority. This conception has been contested in recent years, as has the premise that all minors are incompetent to make decisions and function as legal actors. Fueled by the controversy over adolescent access to abortion, an advocacy movement has emerged that challenges the authority of parents and the state over the lives …

Pluralism, Parental Preference, And Child Custody, Elizabeth S. Scott

Faculty Scholarship

Modern child custody law faces an important challenge in responding to pluralistic and evolving gender and parenting roles. Professor Scott finds rules favoring maternal custody, joint custody, and the best interests of the child wanting; she argues that the optimal response to the current pluralism in family structure is a rule that seeks to replicate past parental roles. This "approximation" standard promotes continuity and stability for children. It encourages cooperative rather than conflictual resolution of custody, thereby ameliorating the destructive effects of bargaining at divorce. It also recognizes and reinforces role change in individual families, encouraging both parents to invest …

The Ethics Of Criminal Defense, William H. Simon

Faculty Scholarship

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

M Is For The Many Things, Carol Sanger

Faculty Scholarship

People have gotten quite a few things about mothers and motherhood wrong over the last 700 or so years. Educators, historians, jurists, philosophers, physicians, social workers, and theologians have been telling us what mothers are like: what they need, how they feel, what pleases them, how and how well they think. Mothers didn't love their children in the fifteenth century and loved them too much in the 1950s. Black mothers felt no pain in childbirth, and white mothers felt no pleasure in intercourse. The obligations of motherhood, physical and social, have been used to explain why women should not work, …

Efficiency And Individualism, Gary S. Lawson

Faculty Scholarship

Law and economics-the systematic application of neoclassical price theory to legal problems 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," and that figure may seriously

understate the theory's influence. A number of justifiably well regarded 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 …

The Changing Landscape Of Human Experimentation: Nuremberg, Helsinki, And Beyond, George J. Annas

Faculty Scholarship

Since World War II there have been persistent efforts at both the national and international level to develop rules to protect the rights and welfare of subjects of human experimentation.' These efforts have focused primarily on codifying the rights of subjects, and protecting their welfare by prior peer review of research protocols. In recent years research regulations have been under attack by politicians, drug companies, researchers, and advocacy groups. In less than half a century, human experimentation has been transformed from a suspect activity into a presumptively beneficial activity. With this transformation, traditional distinctions between experimentation and therapy, subject and …

Of Harms And Benefits: Torts, Restitution, And Intellectual Property, Wendy J. Gordon

Faculty Scholarship

Copyright and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land, intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.

National Institutes Of Health Workshop Statement. Reproductive Genetic Testing: Impact On Women, Karen H. Rothenberg, Elizabeth Thomson

Faculty Scholarship

No abstract provided.

The Poverty Of Privacy?, Linda C. Mcclain

Faculty Scholarship

This Article has two aims. First, it defends a continuing role for the right of privacy in arguments -for women's reproductive freedom against charges that privacy is an impoverished concept. Second, it raises cautions about certain feminist critiques of privacy that would ground this freedom in notions of reproductive responsibilities. As this Article was first presented at a conference, "Reproductive Issues in a Post-Roe' World," held in the wake of Webster v. Reproductive Health Services,2 the first question is: Are we now, given the Supreme Court's recent decision in Planned Parenthood v. Casey,' in a "post-Roe world"? Furthermore, what remains …

Struggling To Stop The Flood Of Unreliable Expert Testimony, David L. Faigman

Faculty Scholarship

No abstract provided.