Digital Commons Network^™

Book Review: Rethinking The American Constitutional Tradition: National Dimensions In The Formulation Of State Constitutions, Christian G. Fritz

Faculty Scholarship

Founding the Far West is an important scholarly contribution to nineteenth-century American history. However, its analysis of how California, Oregon, and Nevada became states identifies a dynamic that fails to capture the tradition of American constitution-making. Only when state constitution-making is more widely studied can the dimensions of that tradition be understood in ways that will integrate the meaning of the state constitutional experience. So too, the recent interest in state constitutions as documents having an independent source of constitutional authority may curb the ingrained habit of studying American constitutional law from "the top down" and encourage scholars to bring …

Hearing Women Not Being Heard: On Carol Gilligan's Getting Civilized And The Complexity Of Voice, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Margaret Somerville: A Refreshing Challenge, George J. Annas

Faculty Scholarship

Health law is applied law, the entire body of law applied to the promotion of human health and the delivery of medical care. It is accurate, if not flattering, to observe that the vast majority of health law teachers and practitioners are content to take their "applied" discipline as they find it, and spend most of their time and energy describing the intersections of law, medicine, and health care as they occur in the world around us. Margaret Somerville is a refreshing challenge to health law's self-satisfied and confining activities, and it has been invigorating to be her friend and …

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

Mediating Life And Death Decisions, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Testing Penry And Its Progeny , Deborah W. Denno

Faculty Scholarship

In Penry v. Lynaugh, the United States Supreme Court held that the Texas death penalty statute was applied unconstitutionally because the trial court gave no instructions allowing the jury to “consider and give effect to” the defendant's mitigating evidence of organic brain damage, moderate retardation, and disadvantaged background. The Court considered these mitigating factors relevant because of society's steadfast belief in the lesser culpability of defendants whose criminal acts are due to a disadvantaged background, or to emotional and mental disorders. The jury must have full consideration of such evidence in order to give its “reasoned moral response” to the …

Patients' Rights After Health Care Reform: Who Decides What Is Medically Necessary?, Wendy K. Mariner

Faculty Scholarship

President Clinton's Health Security Act entitles individuals not to unlimited health care, but to a package of defined insurance benefits with specific exclusions and limitations. Like virtually all reform proposals, it would limit covered benefits to services that are medically necessary. If health reform is to control costs, not all medically necessary care can be covered. In the absence of a generally accepted definition of medical necessity, many services will not be guaranteed to all patients unless they are explicitly covered in the federal legislation or regulations. Without a federal definition of medical necessity or regulations listing covered services, health …

Enforcing Coasian Bribes For Non-Price Benefits: A New Role For Restitution, Wendy J. Gordon, Tamar Frankel

Faculty Scholarship

In Boomer v. Muir,¹ a subcontractor on a hydroelectric project continued to provide goods and services even though the value of the performance far exceeded the contract price. The general contractor, who was receiving these goods and services, breached the contract even though he was paying less than market price for them.²

In many states, a supplier in the subcontractor's position has among her options the choice of "rescission and restitution."³ That means the supplier may rescind the contract and seek, under the label of "restitution", payment set at market price (or at her cost)⁴ for …

Gestational Surrogacy And The Health Care Provider, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Law, Culture, And Harassment, Anita Bernstein

Faculty Scholarship

No abstract provided.

Heirs Of Leonardo: Cultural Obstacles To Strict Products Liability In Italy, Anita Bernstein, Paul Fanning

Faculty Scholarship

No abstract provided.

The Straight-Line Method Of Determining Personal Jurisdiction, John M. Brumbaugh, William L. Reynolds

Faculty Scholarship

No abstract provided.

Punitive Damages Awards In Product Liability Litigation: Strong Medicine Or Poison Pill - Introduction, Aaron Twerski

Faculty Scholarship

No abstract provided.

"It's A Family Affair", Justin P. Brooks, Kimberly Bahna

Faculty Scholarship

No abstract provided.

The Victims Of Nimby, Michael B. Gerrard

Faculty Scholarship

It is a syndrome, a pejorative, and an acronym of our times: NIMBY, or Not In My Back Yard. It has a political arm, NIMTOO (Not In My Term Of Office), an object of attack, LULUs (Locally Undesired Land Uses), and an extreme form, BANANA (Build Absolutely Nothing Anywhere Near Anyone). Acronyms aside, however, the question remains as to whether or not NIMBY has victims. Is anyone hurt by NIMBY?

Many leading voices in the environmental justice movement believe that minority communities are victims of NIMBY. For example, Professor Robert D. Bullard has written that "[t]he cumulative effect of not-in-my-backyard …

Fear And Loathing In The Siting Of Hazardous And Radioactive Waste Facilities: A Comprehensive Approach To A Misperceived Crisis, Michael B. Gerrard

Faculty Scholarship

Few laws have failed so completely as the federal and state statutes designed to create new facilities for the disposal of hazardous and radioactive waste. Despite scores of siting attempts and the expenditure of several billion dollars since the mid-1970s, only one radioactive waste disposal facility, only one hazardous waste landfill (in the aptly named Last Chance, Colorado), and merely a handful of hazardous waste treatment and incineration units are operating on new sites in the United States today.

In 1981, a leading member of Congress, relying on data from the U.S. Environmental Protection Agency (EPA), predicted that by 1985 …

The Dark Secret Of Progressive Lawyering: A Comment On Poverty Law Scholarship In The Post-Modern, Post-Reagan Era, William H. Simon

Faculty Scholarship

In 1971, Stephen Wexler argued in "Practicing Law for Poor People" that what poverty lawyers should be doing was, in a word, organizing. I Wexler flaunted a tough-minded disdain, not only for individual claim assertion, but also for the purely individual concerns of particular clients. Instead, he advocated efforts to assist the poor to collective power.

In his 1977 diagnosis of the state of poverty practice, Gary Bellow argued that what legal services lawyers should be doing was "focused case pressure." He proposed aggregating small housing or welfare claims in order to generate pressure on institutions engaged in systemic misconduct …

Gay Rights Through The Looking Glass: Politics, Morality, And The Trial Of Colorado's Amendment 2, Suzanne B. Goldberg

Faculty Scholarship

Courts have long struggled to resolve the question of how far a community may go in exercising its power to treat minority members differently. Popular prejudice, "community morality" and invidious stereotypes repeatedly have had their day in court as judges work to reconcile equal protection and privacy rights with their own attitudes about the place of people of color, women and gay people in society. In the early 1990s, the tension between the American ideal of equality and the reality of human diversity starkly emerged. A national wave of citizen-sponsored initiatives seeking to amend state constitutions and local charters to …

Facing The Challenge: A Lawyer's Response To Anti-Gay Initiatives, Suzanne B. Goldberg

Faculty Scholarship

We are living in an extraordinary period of gay and lesbian history. As lesbian and gay civil rights gain increasing recognition throughout the country – through small but growing numbers of laws prohibiting sexual orientation discrimination, court rulings protecting lesbian and gay parents' custody of their children, and a historically unprecedented level of positive media coverage – our struggles also have escalated enormously. Not only must we litigate and negotiate for equal opportunity in employment, housing, and parenting rights as always, but also we face a nationally organized and terrifically well-funded assault on our fundamental rights as citizens.

This nationwide …

Echoes Of Tomorrow: The Road To Serfdom Revisited, Alex Kozinski, David M. Schizer

Faculty Scholarship

It is now half a century since Hayek published The Road to Serfdom. Much of our population was not even born when he wrote this terse, eloquent work – and a lot has happened since. A lifetime of conflict has raged over the ideas Hayek considered in his slender volume. Unimaginably destructive weapons have been aimed at the world's population centers, menacing the very survival of our species. Even under their shadow, we have seen revolutions reacting against the abuses Hayek identified. Millions have gained their freedom. Walls that seemed permanent came crashing down. We hope they stay down.

Our …

Democracy And Domination In The Law Of Workplace Cooperation: From Bureaucratic To Flexible Production, Mark Barenberg

Faculty Scholarship

In May of 1993, President Clinton's Commission for the Future of Worker-Management Relations began its investigation of whether a major overhaul of United States labor law is necessary to encourage high-performance workplaces and labor-management cooperation. Even if its recommendations, due in November 1994, do not yield immediate congressional fruit, the Commission's work is likely to influence the study and politics of labor law reform for some time to come. The Commission is chaired by John Dunlop, the eminent labor-relations specialist and former Secretary of Labor. Its membership includes some of the nation's foremost academic and political proponents of far-reaching labor …

The Unnatural Expansion Of Trademark Rights: Is A Federal Dilution Statute Necessary?, Kenneth L. Port

Faculty Scholarship

This article is a systematic review of proposed section 43(c ). Proposed section 43(c ) would create a federal cause of action for trademark dilution and would grossly expand trademark rights. The article reviews both the practical implications and theoretical underpinnings of the dilution concept. Part II describes the basic origins and history of the dilution debate. Part IV(A) presents the practical problems that proposed section 43(c ) raises. Part IV(B) critiques some of the more popular theoretical justifications that are typically used to support granting intellectual property rights and concludes that no satisfactory theoretical justification exists to warrant an …

Brutality In Blue: Community, Authority, And The Elusive Promise Of Police Reform, Debra A. Livingston

Faculty Scholarship

In January 1994, President Clinton invited Kevin Jett, a thirtyone-year-old New York City police officer who walks a beat in the northwest Bronx, to attend the State of the Union Address. Jett stood for Congress's applause as the President called for the addition of 100,000 new community police officers to walk beats across the nation. The crime problem faced by Officer Jett and community police officers like him, the President said, has its roots "in the loss of values, the disappearance of work, and the breakdown of our families and communities." According to the Clinton administration, however, the police – …

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Bruce A. Green, Daniel C. Richman

Faculty Scholarship

No abstract provided.

Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that …

Reflections On Judge Weinstein's Ethical Dilemmas In Mass Tort Litigation, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Sentencing: Capital Punishment, Jodi L. Short, Mark D. Spoto

Faculty Scholarship

No abstract provided.

Death By Prescription, George J. Annas

Faculty Scholarship

Society and physicians in the United States remain unable to accept death and thus unable to deal with the physical, psychological, and spiritual approach of death. The hour of death itself “is commonly tranquil,” but “the serenity is usually bought at a fearful price -- and the price is the process by which we reach that point” -- a process that has been described as “a purgatory that may last for weeks.” Suicide has been seen as a rational way to avoid that purgatory, especially as a response to end-stage cancer and AIDS, and proposals to “legalize” physician-assisted suicide in …

Reflections Inspired By My Critics, Philip Chase Bobbitt

Faculty Scholarship

The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is justification.

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other purposes.

By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and legitimation. …

Institutions As Relational Investors: A New Look At Cumulative Voting, Jeffrey N. Gordon

Faculty Scholarship

The hostile takeover may have become a receding memory, but the problem that the market in corporate control purported to address nevertheless remains. In a world of imperfect competition, the product, capital, and managerial markets may temporarily indulge suboptimal performance by a firm's managers. As cases such as GM, Sears, American Express, and IBM illustrate, a firm with a substantial franchise and substantial financial reserves can sustain deteriorating economic performance over a significant period, resulting in a long slow slide of economic values. Shareholders and society generally will benefit from a mechanism that replaces the firm's incumbent managers well before …