Digital Commons Network^™

Integrating Indian Law Into A First Year Legal Writing Course, Barbara P. Blumenfeld

Faculty Scholarship

When the author designed the appellate problem for first-year law students, she chose Indian Law because the learning experience transcends subject-specificity. The author discusses how she designs the problem and introduces it to students, and notes reactions from students as they research and prepare their brief.

Feminism At The Millennium, Carol Sanger

Faculty Scholarship

Sexism of all kinds – subtle and blatant, criminal and legal, commercial and private – is the topic of the three books under review. The books initially sort themselves out by discipline: Everyday Sexism and Subtle Sexism are anthologies whose editors and contributors are primarily sociologists; Speaking of Sex is written by a law professor and offers a more focused argument about the persistence of gender inequalities. Distinctions in authorship aside, the three books pose a pair of similar and painfully familiar questions: Why is so much still organized to the disadvantage of women, and what can (feminist) academics contribute …

Challenges To Fragile Democracies In The Americas: Legitimacy And Accountability, Martin Böhmer, A.R. Brewer-Carías, Helen Beatriz Mack Chang, Sarah H. Cleveland, Francisco Cox, Lourdes Flores Nano, H.W. Perry Jr., Steven Ratner, Carlos Rosenkrantz, Roberto Saba, Dean Michael Sharlot, Nicolas Shumway, Gerald Torres

Faculty Scholarship

February 25, 2000, the University of Texas School of Law hosted an extraordinary gathering to discuss the fragility of democracies in Latin America and the dangers that they face. The event was sponsored by several institutions at the University of Texas: the School of Law, the Institute of Latin American Studies, the Office of the Provost, the College of Liberal Arts Democracy in the Third Millennium Program, and the International Law Society at the School of Law.

Taking Care, Katherine M. Franke

Faculty Scholarship

Care must be taken when human needs are expressed in the odd dialect of legal rights. This delicate act of translation – from private need to public obligation – demands acute sensitivity to the ways in which public responsibility inaugurates a new and complex encounter with a broad array of public preferences that deprive dependent subjects of primary stewardship over the ways in which their needs are met. Both Martha Fineman and Joan Williams have taken on the difficult project of making the ethical and political case for transforming dependency and care – from private or domestic need to public …

Joel Feinberg On Crime And Punishment: Exploring The Relationship Between The Moral Limits Of The Criminal Law And The Expressive Function Of Punishment, Bernard Harcourt

Faculty Scholarship

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest inexpressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg's essay. As Carol Steiker observes, "Joel Feinberg can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay, The …

Guns, Crime, And Punishment In America, Bernard E. Harcourt

Faculty Scholarship

There are over 200 million firearms in private hands in the United States, more than a third of which are handguns. In 1993 alone, it is estimated that 1.3 million victims of serious violent crime faced an offender with a gun. In 1999, there were approximately 563,000 such victims. Estimates of defensive uses of firearms – situations where individuals used a gun to protect themselves, someone else, or their property – range from 65,000 to 2.5 million per year. Punishments for crimes committed with a firearm are severe: under the federal firearms enhancement statute, the mandatory minimum sentence for use …

The Politics Of Judicial Reform In Japan: The Rule Of Law At Last?, Setsuo Miyazawa

Faculty Scholarship

The purpose of this paper is to discuss the most recent changes in Japan's political environment that could radically alter its judicial system and legal profession in the near future. Reform of the judicial system and legal profession has now been placed on the national agenda, and the cast of players involved has spread from the traditional groups of legal professionals (judges, prosecutors, and attorneys) to the major actors of the larger political process, namely the Liberal Democratic Party (Jiya Minshu T6) ("LDP"), the ruling conservative party, and the Federation of Economic Organizations (Keidanren), one of the most influential organizations …

Unocal Fifteen Year Later (And What We Can Do About It), Ronald J. Gilson

Faculty Scholarship

The coincidence of the new millennium and the fifteenth anniversary of the Delaware Supreme Court's announcement of a new approach to takeover law provides an occasion to evaluate a remarkable experiment in corporate law – the Delaware Supreme Court's development of an intermediate standard of review for appraising defensive tactics. This assessment reveals that Unocal has developed into an unexplained and likely inexplicable preference that control contests be resolved through elections rather than through market transactions. In doing so, the remarkable struggle between the chancery court and the supreme court for Unocal's soul is canvassed. The author also maintains that …

Disclosure Norms, Eric L. Talley

Faculty Scholarship

The purpose of this Article is to interrogate the relationship between judicial error and extralegal norms more formally, focusing particularly on typical corporate disclosure contexts. In so doing, I shall argue that this relationship is far less clear-cut than much of the literature suggests. Using a formal, game-theoretic model of information disclosure, I demonstrate that in the presence of judicial error, a society that benefits from extralegal norms of honest disclosure might ironically favor more expansive legal regulation than would a similarly situated society in which norms are weak or nonexistent. Thus, in contrast to the common argument that norms …

Second Generation Employment Discrimination: A Structural Approach, Susan Sturm

Faculty Scholarship

The judiciary's traditional rule-based approach has been successful in reducing overt discrimination against women and people of color. It has been less effective in addressing more subtle and complex forms of workplace inequity. These second generation forms of bias result from patterns of interaction, informal norms, networking, mentoring, and evaluation. Drawing on the potential of recent Supreme Court decisions, Professor Sturm proposes a structural regulatory solution to this problem of second generation employment discrimination. Her approach links the efforts of courts, workplaces, employees, lawyers, and mediating organizations to construct a regime that encourages employers to engage in effective problem solving. …

Theorizing Yes: An Essay On Feminism, Law, And Desire, Katherine M. Franke

Faculty Scholarship

In this Essay, Professor Franke observes that, unlike feminists from other disciplines, feminist legal theorists have neglected to formulate a positive theory of female sexuality. Instead, discussions of female sexuality have been framed as either a matter of dependency or danger. Professor Franke begins her challenge to this scheme by asking why legal feminism has accepted unquestionably the fact that most women reproduce in their lifetimes. Why have not social forces that incentivize motherhood – a dynamic she terms repronormativity – been exposed to as exacting a feminist critique as have heteronormative forces that normalize heterosexuality? Furthermore, she continues by …

Look Who's Extrapolating: A Reply To Hoffmann, Valerie West, Jeffery Fagan, James S. Liebman

Faculty Scholarship

In late March, a reporter called with news of a pirated copy of Professor Joseph Hoffinann's soon-to-be-published "attack" on our study, A Broken System: Error Rates in Capital Cases, 1973-1995. Did we care to comment? Obtaining our own copy revealed that Professor Hoffmann's fusillade missed its mark (he misstates what we did) and boomeranged (his mischaracterizations of our analysis accurately describe his own). We do care to comment, and Hoffmann and the Indiana Law Journal have graciously let us do so.

Hoffmann's main claim is that we "extrapolated" the 68% rate of reversible error we reported for capital verdicts …

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …

Accounting For Family Change, Katharine B. Silbaugh

Faculty Scholarship

The legal focal point of familial obligation in the United States has long been the relationship between paired adults-most centrally marriage. Obligations to children, and rights to their company, were derivative; they were to be met through the framework of the all-important pairing of adults. Over the past several decades, that core source of legal obligation has shifted from the adult relationship between partners to the relationship between parent and child. The shift has occurred at a number of different levels, and it has had a variety of consequences, the majority of which are still shaking out. The legal catalyst …

Private Choices And Public Law Richard A. Posner's Contributions To Family Law And Policy, Ben Depoorter, Francesco Parisi

Faculty Scholarship

No abstract provided.

From Difference To Dominance To Domesticity: Care As Work, Gender As Tradition, Joan C. Williams

Faculty Scholarship

No abstract provided.

Soul For Sale: An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements, Susan Saab Fortney

Faculty Scholarship

This article analyzes the results of an empirical study to illustrate the effect of billable hour requirements on associate satisfaction and law firm culture. Part I briefly describes the survey design and the general profile of the survey respondents. Part II discusses current billing practices and pressures analyzing the study results related to billing expectations and guidance as well as firm culture and work alternatives. Using findings from the study, Part III considers the detrimental micro and macro effects of increasing billable hour expectations. Part IV proposes various steps and measures that can be taken to address the negative consequences …

Intergenerational Community Schools: A New Practice For A New Time, Peter J. Whitehouse

Faculty Scholarship

This article outlines the concept and initial implementation of an intergenerational learning community (ILC), a new charter school concept, and reviews relevant literature. We discuss the mission, curriculum, educational design, philosophy, and lessons learned from initial implementation of The Intergenerational School (TIS). Such multiage communities of learners represent a conceptual and organizational response to the challenges that rapid cultural and environmental change and resultant alienation are posing for human societies. © 2000 Taylor and Francis Group, LLC.

Principled Standard Setting Requires Consideration Of More Than Science (Aei-Brookings Joint Center For Regulatory Studies, Brief 00-02) Brief Amicus Curiae In Support Of Respondents, Browner V. American Trucking Associations, Inc., No. 99-1257, (U.S. September 11, 2000)(With 20 Law Professors, Economists, And Scientists), Jonathan B. Wiener, Cary Coglianese, Gary Marchant

Faculty Scholarship

Summary of Argument: Throughout this proceeding, EPA has identified no policy or normative criteria to justify its NAAQS standards, thus suggesting that science alone can be used to determine the appropriate air quality standard. Science plays a critical, indeed essential, role in evaluating the risks of possible air quality standards being considered for adoption by EPA. However, science by itself cannot provide the justification for selecting a particular air quality standard. Especially in setting standards for non-threshold pollutants, such as in this case, scientific evidence cannot alone indicate where the standard should be set, since any level above zero will …

Global Finance And The International Monetary Fund's Neoliberal Agenda: The Threat To The Employment, Ethnic Identity, And Cultural Pluralism Of Latina/O Communities, Timothy A. Canova

Faculty Scholarship

This Article places recent Lat-Crit scholarship in an institutional and inter-disciplinary context. It serves not just as an indictment of the International Monetary Fund (IMF) agenda of structural adjustment and liberalization. It also questions the positioning of Lat-Crit scholars to remain silent or complicit with the IMF's agenda. Canova provides a counter-narrative that is rich in historical revisionism, heterodox economics, and sociological conclusions. His recognition of the global unemployment crisis - made largely invisible by orthodox economics and flawed government measurements - is combined with existential insights about the nature of underemployment on the formation of individual identity and cultural …

Latinas And Religion: Subordination Or State Of Grace?, Laura M. Padilla

Faculty Scholarship

This Essay addresses how religion simultaneously subordinates Latinas while serving as a source of strength. More specifically, it focuses on Catholicism and how the same church and religion have a fragmented and varied impact on Latinas, particularly Mexican-Americans, with whom I am most familiar.

Foreword: Legal And Constitutional Implications Of The Calls To Revive Civil Society, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This symposium addresses legal and constitutional implications of the calls to revive or renew civil society (a realm between the individual and the state, including the family and religious, civic, and other voluntary associations). The erosion or disappearance of civil society is a common diagnosis of what underlies civic and moral decline in America, and its renewal features prominently as a cure for such decline. To date, there has been a great deal of discussion of civil society and proposals for its revival or renewal, but not enough discussion of legal and constitutional implications of such proposals. This symposium seeks …

The Paradox Of Free Market Democracy: Rethinking Development Policy, Amy L. Chua

Faculty Scholarship

No abstract provided.

Wrongful Death: Oklahoma Supreme Court Replaces Viability Standard With "Live Birth" Standard, Fatma Marouf

Faculty Scholarship

Since the United States Supreme Court decision of Roe v. Wade, the line of viability for human fetuses has been consistently pushed back to earlier and earlier gestational ages. Granting "person" status to a nonviable fetus, even if only for purposes of the wrongful death statute, as the Oklahoma Supreme Court did in Nealis v. Baird, represents an important expansion of fetal rights. Although the court explicitly limited its decision to nonviable fetuses born alive, Judge Opala conceded that much of his opinion could apply equally to stillborn fetuses. The court's decision in Nealis raises important questions about …

Colorism: A Darker Shade Of Pale, Taunya Lovell Banks

Faculty Scholarship

In this article, Professor Banks argues that colorism, skin tone discrimination against dark-skinned but not light-skinned blacks, constitutes a form of race-based discrimination. Skin tone discrimination coexists with more traditional forms of race discrimination that impact all blacks without regard to skin tone and phenotype, yet courts seem unwilling to recognize this point. Professor Banks uses employment discrimination cases to illustrate some courts' willingness to acknowledge subtler forms of race-based discrimination, like skin tone discrimination, for white ethnic and Latina/o plaintiffs, but not for black plaintiffs. The inability of courts to fashion coherent approaches to colorism claims involving black claimants …

But Why Not Marriage: Some Thoughts On Vermont’S Civil Unions Law, Same-Sex Marriage, And Separate But (Un)Equal, Barbara Cox

Faculty Scholarship

This article is divided into three sections. Section one considers the positive results from the civil unions law. It recognizes that this legislation represents an important step along the path toward full recognition of same-sex couples by extending significant rights, benefits, and responsibilities beyond opposite-sex marriage." With these benefits, however, come several problems. Section two places the civil unions law along side other examples of "separate but equal" restrictions in the race and sex contexts and considers it within the sexual orientation context. This section explains how government-sponsored segregation has always caused damage to both groups that are taught they …

Patents And Cumulative Innovation, Clarisa Long

Faculty Scholarship

Proprietary rights to the products of biomedical research have repeatedly been a source of controversy for over twenty years. Patents on biomedical innovations have allowed scientists, academics, and research institutions to raise research funds and have contributed to the growth of the biotechnology industry. But “one firm’s research tool may be another firm’s end product.” Patents have been a source of great concern for academic and basic researchers, who fear that proprietary rights to basic research results will hamper the progress of science, stifle the free flow of new knowledge and the dissemination of research results, and chill the research …

Death Is The Whole Ball Game, Jeffrey A. Fagan, James S. Liebman, Valerie West

Faculty Scholarship

In Capital Appeals Revisited and The Meaning of Capital Appeals, Barry Latzer and James N.G. Cauthen argue that a study of capital appeals should focus only on overturned findings of guilt, and complain that in A Broken System we examine all overturned capital verdicts. But the question they want studied cannot provide an accurate evaluation of a system of capital punishment. By proposing to count only "conviction" error and not "sentence" error, Latzer and Cauthen ignore that if a death sentence is overturned, the case is no longer capital and the system of capital punishment has failed to achieve its …

Death Matters – A Reply To Latzer And Cauthen, James S. Liebman, Jeffrey A. Fagan, Valerie West

Faculty Scholarship

The legal treatment of capital punishment in the United States "rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. This predicate is among "the evolving standards of decency that mark the progress of a maturing society" and determine whether a punishment is "cruel and unusual" in violation of the Constitution. Because "'[f]rom the point of view of the defendant, [death] is different in both its severity …

Sexual Harassment And Racial Disparity: The Mutual Construction Of Gender And Race, Tanya K. Hernandez

Faculty Scholarship

For a number of years, commentators have proffered anecdotal evidence to suggest that women of color figure prominently as sexual harassment plaintiffs. Until recently, a systematic statistical analysis of women's experiences of sexual harassment by race was largely unavailable. For the first time, this Article comprehensively analyzes Equal Employment Opportunity Commission (EEOC) sexual harassment charge statistics, by looking at data from the last seven years along with Lexis-Nexis and Westlaw electronic reports of sexual harassment complaints for the last twenty years. What immediately becomes apparent in this statistical analysis of sexual harassment charges in the United States is the overrepresentation …