Digital Commons Network^™

An Offer She Can’T Refuse: When Fundamental Rights And Conditions On Government Benefits Collide, Marie Failinger

Faculty Scholarship

This article criticizes the Maher/Harris conditions doctrine on two levels. At the first level, it suggests that the Maher/Harris doctrine cannot justify the Court’s decisions to uphold government withdrawals of funding from rights-exercises. At the second level, after exposing and contrasting the definitional presuppositions of the Court in Maher and Harris with previous cases, the article suggests that the Maher/Harris doctrine is a failure because it uses utterly inadequate rights theory to resolve emerging issues of conflicting human need and conscience, issues which are mediated by government action. The author creates a space for a discussion of a new framework …

Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye

Faculty Scholarship

The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence of any …

Judicial Clerkships And Elite Professional Culture, William H. Simon

Faculty Scholarship

Clerkships have become increasingly prominent in the culture of elite law schools in recent years. More students are seeking clerkships; the application process starts earlier and lasts longer; and the quest seems to generate more anxiety and absorb more energy than in the past.

Justice Jackson's Flag Salute Legacy: The Supreme Court Struggles To Protect Intellectual Individualism, Leora Harpaz

Faculty Scholarship

The first amendment has long protected a complex and interwoven range of individual interests. Protected freedoms often involve expressive activities-religion, speech, the press, assembly, and association. The first amendment also protects an individual's freedom to refrain from expressive activity.

Two distinct kinds of liberty interest support the right to refrain from expressive activity. First, individuals have an interest in not being forced to reveal information about personal beliefs or associations. Such a claim may arise in a variety of contexts: a reporter may not wish to reveal the identity of news sources for fear of discouraging future revelations; a public …

The Role Of Strategic Reasoning In Constitutional Interpretation: In Defense Of The Pathological Perspective Comments, Vincent A. Blasi

Faculty Scholarship

I am indebted to Professor Christie, not only for noticing my work but also for challenging it in so forthright a manner. He has identified a feature of my thesis that deserves to be a focal point for additional debate. Any reader of my original article who was undecided whether to agree with it ought to be aided considerably in the task of critical evaluation by the exchange Professor Christie has initiated. I know my own understanding of the premises and implications of my thesis has been enhanced by the experience of working out a response to his challenge.

The …

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Faculty Scholarship

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.

Is Proof Of Statistical Significance Relevant?, David H. Kaye

Faculty Scholarship

The classic treatises on evidence note that the court or jury must weigh the evidence, and upon weighing it, determine whether the plaintiff or the defendant prevails. Some courts, however, have indicated that statistical evidence should not be admitted unless it is subjected to a procedure known as 'hypothesis testing.' There are many rather mechanical procedures for performing these tests and a number of judges, attorneys, and law professors have suggested that hypothesis testing provides an objective, scientific means of settling disputed questions on which statistical evidence is brought to bear. Yet, many circumstances arise in which courts or administrators …

On The 'Usefulness' Of Suspect Classifications, James W. Ellis

Faculty Scholarship

Reviewing discrimination in legal decisions.

Religiously Based Premises And Laws Restrictive Of Liberty, Kent Greenawalt

Faculty Scholarship

My subject concerns the connection between religious premises and political decisions that restrict people's liberty. This topic has implications for the constitutionality of laws adopted on religious grounds, and I sketch the most important of these implications at the conclusion of this article. My main focus, however, is the proper attitudes of citizens and legislators in our liberal democracy, and, in particular, whether they should rest their judgments on religious premises. In addressing this issue, I concentrate on the responsibilities of citizens and on laws restricting consenting sexual acts and abortions. My main burden is to illustrate two radically different …

Error And Rationality In Individual Decisionmaking: An Essay On The Relationship Between Cognitive Illusion And The Management Of Choice, Robert E. Scott

Faculty Scholarship

How do individuals make choices? In recent years, economists, psychologists and legal academics have searched for answers to various aspects of this question. One topic of recent interest, for example, concerns a lingering problem in information theory: Does consumer inability to process "too much" information cause market failure? The normative implications of this question raise significant policy issues. If consumers' cognitive circuits can become overloaded, then information disclosure is less appealing than direct regulation as a solution to problems of market failure.

Victim, Offender, And Situational Characteristics Of Violent Crime, Deborah W. Denno

Faculty Scholarship

The examination of offenses rather than offenders in past research often overlooked the importance of offender characteristics and background. Indeed, a growing body of research suggests that the biological or psychological characteristics of offenders may strongly influence the outcome of particular encounters or future offense behavior. For instance, offenders with poor verbal ability or low school achievement scores may be more prone to repeat confrontational violence, irrespective of the characteristics of the victim or the situation of the offense. Thus, it is important to distinguish between those offenders with short or repeat offense histories, and those offenses which do or …

Sterilization Of Mentally Retarded Persons: Reproductive Rights And Family Privacy, Elizabeth S. Scott

Faculty Scholarship

Sterilization is one of the most frequently chosen forms of contraception in the world; many persons who do not want to have children select this simple, safe, and effective means of avoiding unwanted pregnancy. For individuals who are mentally disabled, however, sterilization has more ominous associations. Until recently, involuntary sterilization was used as a weapon of the state in the war against mental deficiency. Under eugenic sterilization laws in effect in many states, retarded persons were routinely sterilized without their consent or knowledge.

Sterilization law has undergone a radical transformation in recent years. Influenced by a distaste for eugenic sterilization …

Dworkin: A New Link In The Chain, Joseph Raz

Faculty Scholarship

This book brings together nineteen of the articles published by Professor Dworkin over the last eight years, mostly in the New York Review of Books, but also in learned journals and collections. Three articles, none of them of major importance, have not been published before: Can a Liberal State Support Art? (pp. 221-36), On Interpretation and Objectivity (pp. 167-80), and Civil Disobedience and Nuclear Protest (pp. 104-18). Several pieces published during the last few years are not included, of which the most important is an article on equality.

Crisis? What Crisis?, Jack M. Beermann

Faculty Scholarship

Bureaucracy is a favorite target for criticism from the left and the right. Bureaucratization of an organization is claimed to cause excessive reliance upon rigid rules or the absence of rules altogether.' Few people want to be part of a large bureaucracy and fewer still want to depend on a bureaucracy for important benefits or policymaking. In recent years, the business of the federal judiciary has increased dramatically. Congress has attempted to meet the rising caseload by increasing the number of federal judges and assistants. As the federal court system becomes more and more like administrative bureaucracies, the question has …

The Right Of Elderly Patients To Refuse Life-Sustaining Treatment, George J. Annas, Leonard H. Glantz

Faculty Scholarship

Some legislation, such as law permitting living wills, has addressed the problem of decisions regarding life-sustaining treatment for the elderly. Most of the developing law on the subject is, however, being made by the courts, often in prospective decisions about treatment. These rulings have followed a variety of approaches to the ends of protecting incompetent patients and enforcing the right of the competent to make their own decisions.

The Battered Woman Syndrome And Self-Defense: A Legal And Empirical Dissent, David L. Faigman

Faculty Scholarship

No abstract provided.

The Suspect As A Source Of Testimonial Evidence: A Comparison With The English Approach, Gordon Van Kessel

Faculty Scholarship

No abstract provided.

Sanctions Under Amended Federal Rule 11–Some "Chilling" Problems In The Struggle Between Compensation And Punishment, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

The Hearsay Rule And The Stability Of Verdicts: A Response To Professor Nesson, Roger C. Park

Faculty Scholarship

No abstract provided.

Formal Justice And Judicial Precedent, David B. Lyons

Faculty Scholarship

Despite the encroachment of legislation on matters that used to lie within the province of the common law, considerable scope remains for the judicial practice of following precedent, without challenging the authority of written law. For decisions must still be rendered where legislation has not yet intervened, and interpretations of written law can be accorded precedential force.

Why should courts follow precedents? When past decisions are unobjectionable on their merits, the practice is relatively unproblematic. It might, perhaps, be justified by the usual argument that it makes judicial decisions more predictable. That justification hardly seems, however, to confront the fact …

Informed Consent To Participation In Medical Research Employing Elderly Human Subjects, Robert L. Schwartz

Faculty Scholarship

The primary question facing researchers who intend to employ elderly human subjects is whether their subjects' advanced age requires that the protection of their autonomy be accomplished in some manner that is different from that employed to protect other subjects. Answering this question will require an analysis of whether elderly subjects have a greater or lesser interest in autonomy than do others who might be subjects in human research, and whether it is more or less important to protect them from potential research abuse. This article will suggest that the elderly may possess several attributes that require that they be …

Mentally Retarded Criminal Defendants, James W. Ellis, Ruth A. Luckasson

Faculty Scholarship

This Article attempts to provide a preliminary overview of the issues in the Mental Health Standards as they relate to defendants with mental retardation. Part I reviews the history of the treatment of retarded defendants in the criminal justice system. Part II describes the characteristics of people with mental retardation and the consequences of those characteristics. Part III then discusses the extent to which mental retardation should be exculpatory of criminal responsibility. Part IV analyzes the critical importance of competence issues to mentally retarded defendants. Part V elaborates upon dispositional issues including civil commitment and sentencing. Parts VI and VII …

Modernist Social Theory: Roberto Unger’S Passion, James Boyle

Faculty Scholarship

No abstract provided.

A New Service On The Texas Legal Horizon: Texas Supreme Court Index, James Hambleton, Jim Paulsen

Faculty Scholarship

Since the late 1950's the Texas Supreme Court Journal has been a mainstay of Texas lawyers, offering speedy copies of all supreme court opinions as well as writ dispositions. Though the Texas Supreme Court Journal is invaluable, it does have one major deficiency. Marian Boner's Reference Guide to Texas Law and Legal History puts the problem succinctly: "There is no cumulation, and the cases are not indexed."

A new publication, Texas Supreme Court Index+, is now making a creditable bid to fill that gap. A weekly service originating in Houston, the Index+ contains up-to-date data on the …

Whatever Happened To 1845 - The Missing Decisions Of The Texas Supreme Court, Jim Paulsen, James Hambleton

Faculty Scholarship

Have you ever noticed a gap in the publication of Texas Supreme Court decisions? Both the Harvard "Blue Book" and the University of Texas "Green Book" inform readers that opinions of the court from 1840 to 1844 (the Republic period) can be found in Dallam's Decisions, while decisions from 1846 on (statehood) are available in Texas Reports or the Southwestern Reporter. That's all very clear, but whatever happened to 1845? This article will supply half an answer to this question; perhaps some reader can provide the other half.

Three questions arise. The first, and simplest: Are there any …

The Alaska Workers’ Compensation Law: Fact-Finding, Appellate Review, And The Presumption Of Compensability, Arthur Larson, John Lewis

Faculty Scholarship

No abstract provided.

Recent Developments In Conflicts Of Law Notes, Michael M. Martin

Faculty Scholarship

No abstract provided.

Sociological And Human Developmental Explanations Of Crime: Conflict Or Consensus , Deborah W. Denno

Faculty Scholarship

This paper examines multidisciplinary correlates of delinquency in an attempt to integrate sociological and environmental theories of crime with human developmental and biological explanations of crime. Structural equation models are applied to assess links among biological, psychological, and environmental variables collected prospectively from birth through age 17 on a sample of 800 black children at high risk for learning and behavioral disorders. Results show that for both males and females, aggression and disciplinary problems in school during adolescence are the strongest predictors of repeat offense behavior. Whereas school achievement and family income and stability are also significant predictors of delinquency …

Massachusetts And The Judges: Judicial Independence In Perspective, Barbara Aronstein Black

Faculty Scholarship

This is an essay about an incident that took place in the Province of Massachusetts Bay during the period 1772-1774, an incident that I will call the Affair of the Royal Salary. Close relative of the Stamp Act Crisis, The Boston Tea Party, even the Boston Massacre, the Affair of the Royal Salary similarly involved a clash between the forces of popular government and those of imperial government; like its better known cousins it is part of the story of the coming of the American Revolution in Massachusetts. In addition, since the Salary around which the Affair developed was intended …

Religious Convictions And Lawmaking, Kent Greenawalt

Faculty Scholarship

In this Article, presented as the 1985-86 Thomas M. Cooley Lectures at the University of Michigan School of Law on March 10-12, 1986, Professor Greenawalt addresses the role that religious conviction properly plays in the liberal citizen's political decisionmaking in a liberal democratic society. Rejecting the notion that all political questions can be decided on rational secular grounds, Professor Greenawalt argues that the liberal democratic citizen may rely on his religious convictions when secular morality is unable to resolve issues critical to a political decision. The examples of animal rights and environmental protection, abortion, and welfare assistance illustrate situations where …