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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.

Codification Of Supplemental Jurisdiction: Anatomy Of A Legislative Proposal, Arthur D. Wolf

Faculty Scholarship

The historic nature of congressional action in codifying supplemental jurisdiction in section 1367 calls for a close examination of the legislative process and product. Section I of this Article presents a brief survey of the development of supplemental jurisdiction. Section II examines the history of the legislative process that produced section 1367. Section III contains a preliminary review of judicial decisions under the new supplemental jurisdiction statute. The Article concludes with some editorial remarks regarding the statute and the process by which it became public law.

The Tragedy Of The Interstate Child: A Critical Reexamination Of The Uniform Child Custody Jurisdiction Act And The Parental Kidnaping Prevention Act, Anne B. Goldstein

Faculty Scholarship

This Article's thesis is that the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnaping Prevention Act (PKPA) have not eliminated jurisdictional competition because a federal system such as ours cannot achieve both of the Acts' two main instrumental goals - preventing or punishing "child snatching" and promoting well-informed decisions. Our system commits custody decisions to sovereign states, which make and modify the decisions according to indeterminate precepts. Such a system will inevitably create some version of the interstate child; so long as these features of our system persist, legislation cannot solve the problem. Therefore, although this Article proposes …

Tax Liability And Inarbitrability In International Commercial Arbitration, Thomas E. Carbonneau, Andrew W. Sheldrick

Faculty Scholarship

This essay engages in a narrow but crucial inquiry into the limits the inarbitrability defense may now impose upon the exercise of arbitral jurisdiction. While it is assumed that matters relating directly to status and capacity, testamentary dispositions, and title to immovable property fall outside the jurisdictional reach of international arbitrators, the question becomes whether any national regulatory laws, such as tax laws, benefit from the same status of inviolability.

Adversary Excesses In The American Criminal Trial, Gordon Van Kessel

Faculty Scholarship

No abstract provided.

Hate Speech, Cultural Diversity, And The Foundational Paradigms Of Free Expression, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Justice Marshall In The Medium Of Civil Procedure: Portrait Of A Master, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Judicial Federalism In Action: Coordination Of Litigation In State And Federal Courts, William W. Schwarzer, Nancy E. Weiss, Alan Hirsch

Faculty Scholarship

No abstract provided.

Reconciling Individual Rights And Government Interests: Madisonian Principles Versus Supreme Court Practice, David L. Faigman

Faculty Scholarship

No abstract provided.

What Role Should Judges Play In The Aba?: The Jad Position, Geoffrey C. Hazard Jr., William F. Womble, M. Peter Moser

Faculty Scholarship

No abstract provided.

Alvin B. Rubin: Man Of The Law, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Police Officers Accused Of Crime: Prosecutorial And Fifth Amendment Risks Posed By Police-Elicited "Use Immunized" Statements, Kate Bloch

Faculty Scholarship

No abstract provided.

Agricultural Preservation: Protesting The Application Of Revenue Ruling 78-384, William T. Hutton

Faculty Scholarship

No abstract provided.

Deconstitutionalizing Justiciability: The Example Of Mootness, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Debalkanize The Telecommunications Marketplace, Nicholas Allard, Theresa T. Lauerhass

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 …

Parceling Out Land In Baltimore, 1632-1796, Garrett Power

Faculty Scholarship

No abstract provided.

The International Code Of Marketing Of Breast-Milk Substitutes: Survey Of Legislation And Other Measures Adopted (1981-1991), Gillian L. Lester

Faculty Scholarship

Since the adoption of the International Code of Marketing of Breast·milk Substitutes in 1981, Member States of the World Health Organization have responded in varying degree and manner in giving effect to it. WHO has prepared a comprehensive summary, organized on a country-by-country basis, of government action in this regard (document WHO /MCH/NVT /90.1). The present paper complements chis summary, and increases its usefulness, by focusing on the Code's individual articles and describing how each has been given expression through national legislation or other measures. Their adoption is one aspect of the wider efforts Member States are making to address …

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.

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 …

Natural Rights And Positive Law: A Comment On Professor Mcaffee's Paper, Philip A. Hamburger

Faculty Scholarship

Were the rights retained by the people defined by positive law? This is the issue explored by Professor McAffee and various other scholars who dispute the history of the Ninth Amendment. Surveying the work of these other historians, Professor McAffee distinguishes between those who argue that the framers and ratifiers were "positivists" and those who attribute to the framers and ratifiers a so-called "natural-law" or "natural-rights" perspective-the latter being the view that the rights retained by the people included rights not delineated by the United States Constitution. McAffee rejects this latter point of view in favor of the positivist interpretation …

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 …

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

Faculty Scholarship

No abstract provided.

The Legal Framework For Private Sector Development In A Transitional Economy: The Case Of Poland, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller, Peter G. Ianachkov, Daniel T. Ostas

Faculty Scholarship

The economies of Central and Eastern Europe are in the midst of an historic transition from central planning and state ownership to market driven private sector development. This transition requires comprehensive changes in the "rules of the game" – i.e. the legal framework for economic activity. Markets presuppose a set of property rights and a system of laws or customs that enable the exchange of those rights. The legal framework in a market economy has at a minimum three basic functions:

1. to define the universe of property rights in the system,
2. to set the rules for the entry and exit …

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, …

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 …

The Role Of Institutional Factors In Protecting Individual Liberties, Thomas W. Merrill

Faculty Scholarship

Questions about the efficacy of the Bill of Rights cry out for serious comparative legal scholarship. Robert Ellickson and Frank Easterbrook suggest that one might approach these questions by looking at different state constitutions. One might also look more seriously at the different constitutional regimes around the world, and try to draw some judgments about what impact, if any, different types of constitutional arrangements have on individual rights. We have heard expressions of skepticism about this approach, but there has been very little serious comparative scholarship by constitutional law scholars in this country. The scholarly tradition in America has been …

The Individualized-Consideration Principle And The Death Penalty As Cruel And Unusual Punishment, Ronald J. Mann

Faculty Scholarship

The Eighth Amendment to the United States Constitution prohibits infliction of "cruel and unusual punishments." The Supreme Court established the basic principles applying this amendment to the death penalty during a six-year period in the 1970's. First, in 1972, in Furman v. Georgia, the Court invalidated all then-existing death penalty statutes. Second, in 1976, in Gregg v. Georgia and its companions, the Court upheld some of the statutes promulgated in response to Furman but invalidated others. Finally, in 1978, in Lockett v. Ohio, the Court invalidated an Ohio statute because it failed to give the sentencer a sufficient …

Judicial Deference To Executive Precedent, Thomas W. Merrill

Faculty Scholarship

In 1984, the Supreme Court adopted a new framework for determining when courts should defer to interpretations of statutes by administrative agencies. Previous decisions had looked to multiple contextual factors in answering this question. Chevron U.S., Inc. v. National Resources Defense Council, Inc. appeared to reject this approach and require that federal courts defer to any reasonable interpretation by an agency charged with administration of a statute, provided Congress has not clearly specified a contrary answer. The Court justified this new general rule of deference by positing that Congress has implicitly delegated interpretative authority to all agencies charged with enforcing …