Digital Commons Network^™

2-1-1: The 4th Revolution In Legal Education, Michael I. Sovern

Faculty Scholarship

If we were to count the great changes in legal education from Charles Evans Hughes' day to this, we would find ourselves with a short list. The shift from apprenticeship to school was already well begun by the time Mr. Hughes was graduated from the Columbia School of Law in 1884. The case method was a new idea, but it would become the orthodox methodology in a startlingly short time. By the turn of the century, a number of law schools had moved from two- to three-year programs, but two years was still enough for admission to the bar in …

The Individualization Of Excusing Conditions, George P. Fletcher

Faculty Scholarship

The excusing conditions of the criminal law are variations of the theme "I couldn't help myself' or "I didn't mean to do it." In this respect the defenses known as necessity, duress, insanity and mistake of law are but extensions of homely, routine apologies for causing harm and violating the rules of social and family life. While we use the plea "I couldn't help myself" to cover the full range of excusing circumstances, each of the formal excuses of the criminal law has a limited sphere. As a general matter, these spheres are dictated by the type of circumstances rendering …

Beyond The Best Interests Of The Child, Joanna B. Strauss, Peter Strauss

Faculty Scholarship

Identifying just principles for minimizing and resolving disputes over child custody remains one of the law's knots. King Solomon's renowned gambit for resolving the claims of two women to a newborn child was in fact the easy case: only one of the two contenders had a just claim; only one of the two contenders was prepared to be responsible; and in that first of reported cases, the judge had the advantage of surprise. Yet where each potential custodian has a claim, where each is equally prepared (or unprepared) to sacrifice his interests for the child, and where the rules of …

The Status Of Women In Israel - Myth And Reality, Pnina Lahav

Faculty Scholarship

The issue of women's rights has been subjected to reexamination and redefinition in recent years. The legal structure relevant to this issue, so clearly intertwined with traditional values and historical prejudices, is increasingly studied in an attempt to find ways to achieve equality of the sexes in our lifetime. In this context, cross-cultural study of diverse societies and legal systems can make a vital contribution. A step forward in this direction was taken in the fall 1972 issue of this journal, in a symposium on the status of women. Among others, the Israeli legal system was discussed by Plea Albeck, …

Private Use Of Public Facilities: A Comment On Gilmore V. City Of Montgomery, Larry Yackle

Faculty Scholarship

Perhaps the principal shortcoming of constitutional adjudication in the Supreme Court of the United States is the Court's recurrent failure to set forth principles of decision that rise above the result reached in any particular case.' The other branches of the national government, the states, the bar, and ultimately the public at large require guidance concerning the pressing constitutional issues of the day. That guidance can come only from the Supreme Court, for, to be sure, "[i]t is emphatically the province and duty of the judicial department to say what the law is."2 To the extent the Court shrinks from …

The Patient Rights Advocate: Redefinig The Doctor-Patient Relationship In The Hospital Context, George J. Annas, Joseph M. Healey Jr.

Faculty Scholarship

As Western man approaches the last quarter of the twentieth century, he is developing the power to control the forces of nature. Few areas of human behavior have not been affected by new technologies. In health care, progress has been dramatic in such areas as the determination of prenatal genetic defects through amniocentesis, asexual reproduction through artificial insemination, the use of an artificial placenta, cloning,artifical modification of man-especially through transplantation, ' modification of human behavior through psychosurgery and chemotherapy,' and the mechanical postponement of death. No aspect of health care has escaped the impact of technology.

Psychosurgery: The Law's Response, George J. Annas, Leonard H. Glantz

Faculty Scholarship

Participants in the psychosurgery controversy generally espouse one of three competing points of view. First, there are the surgeons who argue that psychosurgical procedures have developed beyond the experimental stage to the point where they may be considered therapeutic for certain types of patients. Second, there are those who support further research in the area in the hope of developing genuinely therapeutic procedures, but who recognize the importance of safeguarding against potential abuses in the course of this development. Finally, there are the anti-psychosurgeons, who argue for the total prohibition of psychosurgery on ethical, spiritual, or political grounds independent of …

An Obvious Wrong Does Not Make A Right: Manufacturers’ Liability For Patently Dangerous Products, Patricia Marschall

Faculty Scholarship

No abstract provided.

Neumeier V. Kuehner: Where Are The Emperor's Clothes?, Aaron Twerski

Faculty Scholarship

No abstract provided.

The Suicide Defense In Workmen’S Compensation, Arthur Larson

Faculty Scholarship

No abstract provided.

Constitutional Adjudication: The Who And When, Henry Paul Monaghan

Faculty Scholarship

When the newly appointed Justices of the Supreme Court assembled in the Royal Exchange Building in New York for their first session on February 2, 1790, the most farsighted individual could not have foreseen what the future held for this tribunal. Now less than a generation short of its 200th anniversary, the Court is universally acknowledged to be the final and authoritative expositor of the Constitution. Yet after almost two centuries, questions concerning this power of the Court to interpret the Constitution remain. The first set of questions centers on the substantive standards for constitutional adjudication. The second, with which …

Workmen's Compensation: The Aggressor Defense Resurrected, Gail Boreman Bird

Faculty Scholarship

No abstract provided.

Debate, The Right To Treatment: Encounter And Synthesis, Aaron Twerski

Faculty Scholarship

No abstract provided.

The Relationship Between Promise And Performance In State Intervention In Family Life, Peter L. Strauss, Millard L. Midonick, Nanette Dembitz, Harriet F. Pilpel, David J. Rothman

Faculty Scholarship

JUDGE MIDONICK: We have a fantastic representation of our alumni here and we've overdone our 10:00 starting time and we're supposed to stop at 12:00 promptly in order for us to go to the Low Memorial Library for lunch, for those who are having lunch with us. In order to be on time for this afternoon's extravaganza we really ought to begin now. You must understand this program is entirely unrehearsed and therefore will be more interesting. We have with us today a panel of four whom I will introduce as they are to speak. The first speaker will speak …

Interdisciplinary Courses And Programs In Law And Social Work–A Survey, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

The Theory Of Criminal Negligence: A Comparative Analysis, George P. Fletcher

Faculty Scholarship

Negligence is a problematic ground for criminal liability. Every major Western legal system punishes negligent as well as intentional violations of protected interests; but theorists both here and abroad feel uneasy about the practice Negligent motoring and negligent manufacturing significantly threaten the public interest; yet Western judges seem more comfortable punishing counterfeiters and prostitutes than imposing sanctions against those who inadvertently take unreasonable risks. Negligence appears indeed to be an inferior, almost aberrant ground for criminal liability. Every interest protected by the criminal law is protected against intentional violations; but only a few-life, bodily integrity, and sometimes property-are secured against …

Criminal Law And Population Control, Kent Greenawalt

Faculty Scholarship

Several important questions can be asked about criminal law and the population problem. One is how greatly overpopulation, with its contribution to poverty and urban crowding, is a cause of crime, and, obversely, the extent to which population control would be a form of crime control. Another question is how much population growth increases the range of behavior that is and should be covered by criminal sanctions. Although these and other questions deserve attention, the purpose of this article is more modest – to consider possible changes in criminal law that could help ease the population problem.

All Or Nothing At All: The Defeat Of Selective Conscientious Objection, Kent Greenawalt

Faculty Scholarship

The generosity of the United States Supreme Court to conscientious objectors whom Congress has declined to exempt from military service has apparently ended. In Gillette v. United States, decided with Negre v. Larsen, the Court decisively closed the door on claims that those conscientiously opposed to participation in particular wars are entitled by statute or constitutional right to an exemption from military service. Mr. Justice Marshall's majority opinion first disposes of the statutory claim. According to the opinion, the relevant language of § 6(j) of the Military Selective Service Act of 1967," conscientiously opposed to participation in war …

A Return To Jurisdictional Due Process: The Case For The Vanishing Defendant, Aaron Twerski

Faculty Scholarship

No abstract provided.

On The Road To Educational Failure: A Lawyer's Guide To Tracking, G. Emlen Hall

Faculty Scholarship

Tracking, using the term in the broader sense to include all ability . grouping, represents a solution to an insoluble dilemma. While individualized instruction has long been touted as the great desideratum in American education, no one has ever been willing to pay what it would cost to give each child a different education. Educators thus devised what they considered to be the-next best thing, educational units large enough to be economically viable but small enough to isolate students with what were thought to be roughly similar educational needs. These needs are determined by an unformulated formula employing "objective testing," …

Human Rights In The United States: Two Decades' Development, David S. Bogen

Faculty Scholarship

No abstract provided.

The Disadvantaged Student And Preparation For Legal Education: The New York University Experience, Peter A. Winograd, Hughes Graham, Robert B. Mckay

Faculty Scholarship

The law school commitment to enroll more minority students is a decision which can have many and varied ramifications for the law school as an institution. Minority students will bring new perspectives, different needs a total outlook on life and law potentially at variance with that of the majority culture in which most law school faculties and students have been educated. The resulting challenge to accepted norms can be met by the law schools in many ways--it can be ignored, creating frustration and anger, or it can be utilized creatively, expanding the horizons of the law school to include hitherto …

Mental And Nervous Injury In Workmen’S Compensation, Arthur Larson

Faculty Scholarship

No abstract provided.

A Contextual Approach To Disobedience, Kent Greenawalt

Faculty Scholarship

Edmund Burke once noted that the rebelliousness of colonial America was largely a consequence of the size and prominence of the legal profession, under whose influence the people "snuff the approach of tyranny in every tainted breeze." Today, however, most members of the legal profession take a much dimmer view of civil disobedience, although some do acknowledge its justification in special circumstances. Few who write on the subject recognize that in making judgments about the morality of disobedient acts the lawyer's perspective is limited.

Disputes over whether an illegal action is morally justified in a particular instance can be conceptually …

Presidential War-Making, Henry Paul Monaghan

Faculty Scholarship

The Vietnam "war" has convinced many persons that the president of the United States claims apparently unlimited power to commit this country to war. Not surprisingly, therefore, considerable interest has focused on the powers that inhere in the presidency. And many critics of the war – those who in other times and in other contexts might have been sympathetic to a spacious conception of presidential power – have concluded that the Vietnam conflict is not only a tragic error, but is the direct result of unconstitutional conduct by the president. I cannot accept this view; at bottom, it seems to …

Due Process Considerations In Police Showup Practices, Gordon G. Young

Faculty Scholarship

No abstract provided.

Citizens, Police, And Polarization: Are Perceptions More Important Than Facts?, Robert J. Condlin

Faculty Scholarship

No abstract provided.

New Frontiers, Michael E. Tigar

Faculty Scholarship

No abstract provided.

"Uncontrollable" Actions And The Eighth Amendment: Implications Of Powell V. Texas, Kent Greenawalt

Faculty Scholarship

No questions of criminal justice are more fundamental than the bases for imposing criminal punishment, yet the Federal Constitution says nothing explicit about them. It is, therefore, understandable that the increasing limitations imposed by constitutional interpretation upon procedures for ascertaining criminal guilt have not been accompanied by similar limits upon principles of criminal responsibility. That the difference in treatment is understandable does not, of course, necessarily mean it has been justified.

When the Court struck down a law punishing addiction in Robinson v. California in 1962, it was still unclear whether it was willing to become significantly implicated in developing …

Criminal Justice 1968: Developments And Directions, A. Kenneth Pye

Faculty Scholarship

No abstract provided.