Digital Commons Network^™

The Mccleskey Puzzle: Remedying Prosecutorial Discrimination Against Black Victims In Capital Sentencing, Ashutosh Bhagwat, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

The Mccleskey Puzzle: Remedying Prosecutorial Discrimination Against Black Victims In Capital Sentencing, Evan Tsen Lee, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

The Personhood Argument Against Polygraph Evidence, Or "Even If The Polygraph Really Works, Will Courts Admit The Results?", James R. Mccall

Faculty Scholarship

No abstract provided.

Lawyer Discrimination Against Clients: Outright Rejection--No; Limitations On Issues And Arguments-Yes, Sam Stonefield

Faculty Scholarship

The issue of lawyer discrimination brings new perspectives to traditional topics like the practice of law, the role of the lawyer and the relationship with, and rights of, the client. It forces us to examine the nature of lawyer discretion, the limits of that discretion and the consequences of trying to regulate that discretion. The examinationis a daunting task. This essay offers an approach that attempts to protect both the prohibition against discrimination and the practice of law and to accommodate the tension that necessarily accompanies this effort. It suggests that the best solution is to prohibit lawyers from discriminating …

Figure, Mark Bernard Turner

Faculty Scholarship

This chapter reviews the origins of construction grammar, beginning with classical antiquity; analyzes the nature of figure in thought and multimodal communication; and provides an anchor for studies of figure in the basic mental operation of conceptual blending.

Law, Language And Lenity, Lawrence Solan

Faculty Scholarship

No abstract provided.

We're All Capitalist Now: The Importance, Nature, Provision And Regulation Of Investor Education, James A. Fanto

Faculty Scholarship

No abstract provided.

The Pentagon Papers Case And The Path Not Taken: A Personal Memoir On The First Amendment And The Separation Of Powers, Joel Gora

Faculty Scholarship

No abstract provided.

Free Speech And Good Character, Vincent A. Blasi

Faculty Scholarship

Early proponents of the freedom of speech such as John Milton, John Stuart Mill, and Louis Brandeis emphasized the role expressive liberty plays in strengthening the character of persons entrusted with such freedom. These theorists argued that character traits such as civic courage, independence of mind, and the capacity to learn from experience and adapt are nurtured by trusting citizens with dangerous ideas. Today there is much talk about good character in relation to free speech disputes-but all on the side of those who would regulate speakers. It is time to remember that a concern about character cuts both ways …

Race, Gender, And The Law In The Twenty-First Century Workplace: Some Preliminary Observations, Susan P. Sturm

Faculty Scholarship

This article seeks to move beyond the debate between informal and formal legal regulation. Both approaches reflect essential but limited components of a legal regulatory regime. Neither approach adequately responds to the simultaneous challenges of changing organizational structure, racial and gender dynamics, and market-driven demands for flexibility and adaptiveness. The next step requires that we take account of the critiques of formality and informality. This requires embracing the challenge of developing new forms of legal regulation that treat organizational decision makers and incentive structures explicitly as part of the legal regulatory regime. In this view, law consists of a set …

Achieving Consensus On Defective Product Design, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Character At The Crossroads, Roger C. Park

Faculty Scholarship

No abstract provided.

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Faculty Scholarship

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law, mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …

Investor Education, Securities Disclosure, And The Creation And Enforcement Of Corporate Governance And Firm Norms, James A. Fanto

Faculty Scholarship

No abstract provided.

Human Cloning: A Choice Or An Echo, George J. Annas

Faculty Scholarship

The chant is "cloning, cloning, cloning"; but the echo is "choice, choice, choice." From all the hoopla about human cloning as a human choice it would seem that cloning must be the most important scientific issue of our age. My intent in this Commentary is not to join this chorus, but to take advantage of cloning's high visibility to explore the nature of the choice it offers. What is it that makes human cloning at once so appealing to a few and so repulsive to most? The answer, I think, can be found in Roman mythology: Cloning recalls Ovid's myth …

Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman

Faculty Scholarship

Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, Professor Daniel Richman argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer …

Dogmas Of The Model Penal Code, George P. Fletcher

Faculty Scholarship

The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is …

The Fall And Rise Of Criminal Theory, George P. Fletcher

Faculty Scholarship

These are good times – at least for the theory of criminal law. This special issue of Buffalo Criminal Law Review testifies to a remarkable surge of interest among younger scholars in perennial questions: Why should we punish offenders? Do we require a human act as a precondition for liability and what is its structure? What does it mean for someone to be guilty or culpable for committing an offense? How do we avoid contradictions in structuring the criteria of liability? The time has come for renewed intensity in pondering and discussing these basic issues.

The contributions of this symposium …

Putting Sex To Work, Katherine M. Franke

Faculty Scholarship

When I was living in New Haven a number of years ago, a miracle happened that drew people by the thousands to witness evidence of the Divine. A crucifix had been found to appear in the body of an oak tree in the middle of Worchester Square. I went – after all, how often do you get to see that kind of thing? Not surprisingly, at first I couldn't see anything but the usual trunk and limbs of a tree. Yet a believer took the time to show me what was really there, something that my untrained eye could not …

Informed Consent In Mediation: A Guiding Principle For Truly Educated Decisionmaking , Jacqueline Nolan-Haley

Faculty Scholarship

Informed consent has a central role to play in mediation. Without it, mediation's promises of autonomy and self-determination are empty. This Article has given the theoretical and policy justifications for a reform of mediation practice that honors the principle of informed consent. I have argued for a contextualized approach that takes into account mediation's location, the voluntariness of the parties' consent, and their representational status. This kind of analysis will lead to a more informed practice of mediation decisionmaking than exists currently and provide a perspective that can more prudently guide a mediator's conduct. The proposed approach promotes greater fairness …

Lawyering In The State Of Nature: Instinct And Automaticity In Legal Problem Solving , Ian Weinstein

Faculty Scholarship

This article explains why lawyers do not think or talk like other people, how they got this way, and why this is both a good thing and a bad thing. I have watched hundreds of law students leave their old ways of thinking and talking behind and begin to sound like lawyers. One marker of the progress from lay person to lawyer is the emergence of the ability to tell a coherent fact and law story about a new legal problem. I have sometimes celebrated this professional progress and sometimes lamented the loss of common sense, but my lawyerly analysis …

Quo Vadis, Posadas?, William W. Van Alstyne

Faculty Scholarship

This examination looks at Virginia's ban on speech advertising motorcycles and revisits the question raised in the Posadas decision - may a state ban speech about a legal product the state could ban if it so desired. This article uses comparisons to the government employee speech cases to further illuminate the issue.

Preliminary Observations: Asymmetrical Warfare And The Western Mindset, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Concept Of Compliance As A Function Of Competing Conceptions Of International Law, Benedict Kingsbury

Faculty Scholarship

No abstract provided.

Multiracial Discourse: Racial Classifications In An Era Of Color-Blind Jurisprudence, Tanya K. Hernandez

Faculty Scholarship

This Article analyzes the widespread legal ramifications of the Multiracial Category Movement (MCM) and assesses whether the MCM's proposal effectively advances its stated goal of promoting racial equality. After analyzing the legal import of multiracial discourse, the Article determines that the MCM misperception of race and its fluidity inadvertently furthers the progression of color-blind jurisprudence in direct contravention of the MCM goal of promoting racial equality. Part I provides background and identifies the motivating forces behind the MCM as a color-blind movement. Part II critiques the MCM for its adverse effects upon racial justice efforts in furthering the manner in …

Life Before The Modern Sex Offender Statutes , Deborah W. Denno

Faculty Scholarship

This Article examines the social and legal developments that fueled the origins and recurring problems of sex offender laws. Part I of this Article discusses the primary precursors of the sexual psychopath statutes that encouraged the public's and politicians' acceptance of the concept of sexual psychopathy: the increasing sexualization of American society, changes in gender roles and relations, the valuation of children and the family unit, and the influx of psychiatry. Part II describes how the diagnosis of sexual psychopathy slowly developed as a result of the criminal justice system's growing tendency to explain criminal behavior in psychoanalytic terms. Part …

European Economic And Monetary Union: Will The Emu Ever Fly The Euro: A New Single Currency For Europe: Legal Framework, Roger J. Goebel

Faculty Scholarship

The title of this article represents a pun, but a pun with a point that responds to the tensions between these dreams of EMU's success and fears of its failure. The emu is a large Australian bird, but, like the better-known ostrich, the emu does not fly. However, it can run very fast. The point is, that during the early stages of planning for the EMU there were some very high-flying aspirations for what it might attain, and what its attainment might mean for the political future of the European Union. Since then, these aspirations have been considerably chilled by …

Introduction: Locating Culture, Identity, And Human Rights Symposium In Celebration Of The Fiftieth Anniversary Of The Universal Declaration Of Human Rights: Introduction, Catherine Powell

Faculty Scholarship

As we celebrate the Fiftieth Anniversary of the Universal Declaration of Human Rights, the idea of human rights endures. The human rights idea was honored at a conference organized by the Association of the Bar of the City of New York, held at Fordham Law School on December 10-12, 1999, to commemorate the first fifty years of the Universal Declaration of Human Rights. The four pieces that follow were presented at the conference as part of a panel addressing one of the central philosophical concerns regarding the human rights project: its universality. While the panel's title, "What is a Human …

Teaching Ethics Seriously: Legal Ethics As The Most Important Subject In Law School, Russell G. Pearce

Faculty Scholarship

No abstract provided.

The Moral Of Macpherson, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.