Digital Commons Network^™

Paradoxes In Legal Thought, George P. Fletcher

Faculty Scholarship

Traditional legal thought has generated few anomalies, antinomies, and paradoxes. These factual and logical tensions arise only when theorists press for a complete and comprehensive body of thought. Discrete, unconnected solutions to problems and particularized precedents spare us the logical tensions that have troubled scientific inquiry.

Anomalies arise from data that do not fit the prevailing scientific theory. Paradoxes and antinomies, on the other hand, reflect problems of logical rather than factual consistency. To follow Quine's definitions, paradoxes are contradictions that result from overlooking an accepted canon of consistent thought. They are resolved by pointing to the fallacy that generates …

The Intellectual Development Of The American Doctrine Of Judicial Review, Pnina Lahav

Faculty Scholarship

No abstract provided.

Thinking Like A Statistician: The Report Of The American Statistical Association Committee On Training In Statistics In Selected Professions, David H. Kaye

Faculty Scholarship

In 1983, a subcommittee of the American Statistical Association composed of legal educators and one judge issued a report describing existing programs for educating law students in statistics and offering recommendations for improving these programs. This article summarizes that report.

Role Of A National Legal Information Center In The Access To Justice, The, Robert J. Nissenbaum

Faculty Scholarship

The author reviews the nature of disputes and mechanisms for dispute

Lawyers, Politics, And The "Lawyers' Interest": An Historical Inquiry, James W. Gordon

Faculty Scholarship

The assumption that the occupational identification of "lawyer" is the salient feature in evaluating political motivation is interesting, if questionable, according to the Author. Does occupational identity overwhelm other identities? Are politically active lawyers really a homogeneous group? Are they less affected by competing identities associated with wealth, geography, familial and constituency concerns, political ideology, party considerations, or any of the myriad other sources of public and private motivation of behavior? Surely the hypothesis that politically active lawyers behave differently from nonlawyers is worth investigating. This Article offers some preliminary responses to these questions posed, which are grounded in empirical …

Educating Our Children "On Equal Terms": The Failure Of The Dejure/Defacto Analysis In Desegregation Cases, Antoinette M. Sedillo Lopez

Faculty Scholarship

This Article will describe the narrow process oriented analysis and contrast it with the broader analysis of both the process and the results. It will demonstrate the different conceptual framework involved in evaluating each component. This Article will show how the Supreme Court has viewed educational equality following Plessy v. Ferguson. Initially, the Court's evaluation was quite perfunctory, but it became increasingly strict. By 1954, the Court in Brown v. Board of EducationI was well on its way toward evaluating the results as well as the process. Since Brown, the Court has vacillated between reviewing only the purity of the …

Religion As A Concept In Constitutional Law, Kent Greenawalt

Faculty Scholarship

Because federal and state constitutions forbid government from infringing upon religious liberty or supporting religion, courts must sometimes decide whether a claim, activity, organization, purpose, or classification is religious. In most cases arising under these religion clauses, the religiousness of an activity or organization will be obvious. However; when the presence of religion is seriously controverted, the threshold question, "defining religion," becomes important. Most courts have prudently eschewed theoretical generalizations in approaching that question. Academic commentators have struggled to startlingly diverse proposals.

This Article suggests that in both free exercise and establishment cases, courts should decide whether something is religious …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

Competence To Refuse Medical Treatment: Autonomy Vs. Paternalism, George J. Annas, Joan E. Densberger

Faculty Scholarship

The right to refuse medical treatment is universally recognized as a fundamental principle of liberty. Nonetheless, the right is often infringed upon by paternalistic physicians who either use too narrow a definition of competence, or misunderstand or ignore the patient's liberty interest in freedom from coerced medical interventions. A careful consideration of competence in the medical care setting leads to a conclusion that it can best be assessed by determining the patient's ability to understand the information necessary to provide informed consent to treatment. If a patient has this capacity, both his consent and refusal must be honored. Placing competence …

Children Of The Night: The Adequacy Of Statutory Treatment Of Juvenile Prostitution, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

Institutional Litigation In The Post-Chapman World, Susan Herman

Faculty Scholarship

No abstract provided.

Punishment, Kent Greenawalt

Faculty Scholarship

Although punishment has been a crucial feature of every legal system, widespread disagreement exists over the moral principles that can justify its imposition. One fundamental question is why (and whether) the social institution of punishment is warranted. A second question concerns the necessary conditions for punishment in particular cases. A third relates to the degree of severity that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices.

The main part of this theoretical overview of the subject of …

Violence – Legal Justification And Moral Appraisal, Kent Greenawalt

Faculty Scholarship

Thought about a "Right to Violence," the subject of this symposium, is difficult. Once one has adjusted to the paradoxical conjunction of the terms "right" and "violence," and recognized that people may have rights to commit violent acts in some circumstances, one must face the disturbing fact that feelings about violence are highly colored by peculiar psychological dispositions and political ideologies. Especially in respect to violence that is committed in defiance of law, the search for fair bases of moral judgment proves elusive.

The main theme of this essay is that the law itself can provide illuminating points of reference …

The Political Offense Exception As Applied In French Cases Dealing With The Extradition Of Terrorists, Thomas E. Carbonneau

Faculty Scholarship

There is no doubt that terrorism is a dangerous, costly and complex problem. Commentators have speculated extensively about its ideological character and other analysts have studied its sociological roots and psychological origins. Despite all this attention, there is a lack of consensus in the international community about whether terrorism is no more than a sensational form of criminality or a legitimate mode of political expression.

This article does not attempt to deal with all of the multifarious aspects of contemporary terrorism; its ambition is much more modest in scope, centering upon traditional legal mechanisms and doctrines that can be adapted …

Legality, Bureaucracy, And Class In The Welfare System, William H. Simon

Faculty Scholarship

When lawyers confronted the welfare system in the 1960's, they charged it with oppressive moralism, personal manipulation, and invasion of privacy. They focused attention on the "man-in-the-house" rules that disqualified families on the basis of the mother's sexual conduct and the "midnight raids" in which welfare workers forced their way into recipients' homes searching for evidence of cohabitation.

When I represented welfare recipients from 1979 to 1981, the workers showed little interest in policing their morals or intruding on their private lives. The "man-in-the-house" rule and the practice of unannounced or nighttime visits had been repudiated. Yet the pathologies emphasized …

Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

The Exhaustion Doctrine In Federal Habeas Corpus: An Argument For A Return To First Principles, Larry Yackle

Faculty Scholarship

The exhaustion doctrine in federal habeas corpus contemplates not the relinquishment of federal jurisdiction to determine the merits of federal claims arising in state criminal prosecutions, but the appropriate timing of an undoubted federal power to adjudicate in due course. Simply stated, the doctrine postpones federal review until petitioners have exhausted state judicial remedies still available for the treatment of their federal claims at the time they wish to apply for federal relief. The resulting delay is justified on the twin grounds that earlier federal intervention would disrupt the orderly administration of state criminal prosecutions and deprive the state courts …

Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey

Faculty Scholarship

Since the mid-nineteenth century, products liability law has undergone significant modifications. The applicable doctrine has oscillated between contract and tort theories; fault and no-fault liability schemes have competed for predominance. Despite attempts to create an internationally accepted liability norm, different legal systems continue to espouse differing perceptions of the liability formula in the products area. In addition, even in jurisdictions in which courts adhere to identical liability theories, there is disagreement as to the application and implications of the same standard. This article attempts to set the shifting doctrinal character of products liability analysis into a comparative perspective principally between …

Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen

Faculty Scholarship

During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …

‘The State’ And Other Basic Terms In Public Law, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

American Influence On Israel's Jurisprudence Of Free Speech, Pnina Lahav

Faculty Scholarship

This is a study of the role played by judicial development of the First Amendment to the United States Constitution in shaping the jurisprudence of free speech in Israel - a country without a bill of rights. Rivalry and contrast between opposing modes of legal thought, judicial styles, doctrines, and finally, models of democracy within Israel's Supreme Court are major themes. Most of the adversarial elements reflect competing ideas in the intellectual history of American free speech law. Thus, the tension within Israel's Supreme Court reflects the tension between American free speech jurisprudence as it now is and as it …

Delimiting Religion And Ethics, Robert L. Schwartz

Faculty Scholarship

The author argues that people need to make a distinction between religious belief and logical ethics.

Balzacian Legality: A Proposal For Natural Law Juridicial Standards Of Legality, Thomas E. Carbonneau

Faculty Scholarship

The task of the present article is twofold. First, it represents an attempt to make an original English language contribution to the continuing interdisciplinary inquiry, begun in France, into the presence of law in Balzac's The Human Comedy, by focusing upon themes and novels that have not been the subject of previous individual study. Second, it seeks to contribute to an area of growing interest to legal scholars in the United States – the study of law and literature – by providing an example of the insights one French novelist with legal training and experience had into questions that …

Justice Douglas And His Brethren: A Personal Recollection, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.

The Use Of Social Science Data In A Change Of Venue Application: A Case Study, Neil Vidmar, John W. T. Judson

Faculty Scholarship

This article describes how social science data and professional testimony were used to assist judicial decision-making in an application to have a criminal fraud trial moved from Middlesex County, Ontario, because of prejudicial attitudes extant in the community. Typically, in such applications, tenuous documentation of pre-trial publicity and perhaps some unsubstantiated "opinion" testimony by persons purportedly in touch with the pulse of the community are the only evidence introduced . The presiding judge is required to consider this circumstantial, indirect, evidence and draw a conclusion about the level and extent of public prejudice as the merits of the application are …

The Perils Of Writing An Intellectual History Of Torts, George C. Christie

Faculty Scholarship

No abstract provided.

Analytical And Comparative Variations On Selected Provisions Of Book One Of The Louisiana Civil Code With Special Consideration Of The Role Of Fault In The Determination Of Marital Disputes, Thomas E. Carbonneau

Faculty Scholarship

This article is intended to be a type of "structuralist" commentary upon selected provisions in Book I of the Louisiana Civil Code. Its sole purpose is to illustrate, both for pedagogical and doctrinal reasons, some of the analytical difficulties to which these code provisions might give rise when they are read in a close textual fashion. It should be emphasized that this study is a textual commentary and not a historical assessment of the sources or origins of the code texts – the latter analysis is outside the purview of the present endeavor.

Accordingly, this article consists of a critical …

The Regime Of Diplomacy And The Tehran Hostages, Kazimierz Grzybowski

Faculty Scholarship

No abstract provided.

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …

Our Perfect Constitution, Henry Paul Monaghan

Faculty Scholarship

Professor Monaghan takes issue with "due substance" theorists, who view the Constitution as protecting rights and values generated by current conceptions of political morality. In this Article, he examines and criticizes the theories advanced to justify looking to those current conceptions as an acceptable mode of reasoning about constitutional meaning. Professor Monaghan's own view is that the proper mode of ascertaining constitutional meaning is one that looks to original intent and precedent, a view that acknowledges the Constitution does not guarantee perfect government.