Digital Commons Network^™

Doing Originalism, Henry Paul Monaghan

Faculty Scholarship

It is an honor to participate in celebrating Justice Ginsburg's tenth anniversary on the Court. She is a Justice whom I admire on many fronts; moreover, she continues to be a vital part of this school as this Symposium itself attests. But an invitation to participate also presents a challenge: This session is about her and her contributions to various aspects of the Court's jurisprudence. I know Justice Ginsburg well enough to believe that nothing would cause her more discomfort than to be in an audience with herself as the sole topic. So I thought that my remarks should be …

Testing Applicants With Disabilities, Gregory M. Duhl, Stuart Duhl

Faculty Scholarship

All jurisdictions provide reasonableaccommodations for applicants with disabilities who are otherwise qualified to sit for the bar examination. The provision of accommodations is primarily a result of the comprehensive federal law known as the Americans with Disabilities Act (“the ADA”), passed by Congress in 1990 to prohibit discrimination against persons with disabilities. The ADA protects both applicants with physical disabilities and those with mental disabilities, and accommodations include not only additional testing time, longer and more frequent breaks between testing sessions, and private testing rooms, but also other auxiliary aids and services designed to enable effective communication to and from …

The Legal Foundation–Defining The Legislative Format, William W. Huss, Sharon Press, J. Michael Mcwilliams

Faculty Scholarship

Current and pending mediation legislative programs in the United States, Canada, and other countries were examined by speakers and panelists who are living under these new systems or were authors of their design. Topics included court annexed programs, mandatory programs, voluntary programs, private institutional programs, the Uniform Mediation Act, state and federal initiatives, and the impact each has, or will have, on the mediation practice.

A User's Guide To The New Uniform Limited Partnership Act, Daniel S. Kleinberger

Faculty Scholarship

The shelf life on uniform entity acts seems to be decreasing. The original Uniform Partnership Act (UPA) lasted eight decades, and the original Uniform Limited Partnership Act (ULPA (1916)) lasted six. In contrast, the 1976 Revised Uniform Limited Partnership Act (RULPA (1976)) warranted major revisions after just nine years (RULPA (1985)), and only sixteen years later NCCUSL recommended to the states that they adopt ULPA (2001) to replace RULPA in toto. NCCUSL's Revised Uniform [General] Partnership Act - RUPA - was first approved in 1992 and went through five official versions in its first five years of existence. NCCUSL's Uniform …

An Extended Lewis-Stalnaker Semantics And The New Problem Of Counterpossibles,, Jeffrey C. Goodman

Faculty Scholarship

Closest-possible-world analyses of counterfactuals suffer from what has been called the ‘problem of counterpossibles’: some counterfactuals with metaphysically impossible antecedents seem plainly false, but the proposed analyses imply that they are all (vacuously) true.  One alleged solution to this problem is the addition of impossible worlds.  In this paper, I argue that the closest possible or impossible world analyses that have recently been suggested suffer from the ‘new problem of counterpossibles’: the proposed analyses imply that some plainly true counterpossibles (viz., ‘counterlogicals’) are false.  After motivating and presenting the ‘new problem’, I give reasons to think that …

Offense Grading And Multiple Liability: New Challenges For A Model Penal Code Second, Michael T. Cahill

Faculty Scholarship

No abstract provided.

A Defense Of Creationism In Fiction, Jeffrey C. Goodman

Faculty Scholarship

Creationism is the conjunction of the following theses: (i) fictional individuals (e.g. Sherlock Holmes) actually exist; (ii) fictional names (e.g., ‘Holmes’) are at least sometimes genuinely referential; (iii) fictional individuals are the creations of the authors who first wrote (or spoke, etc.) about them.  CA Creationism is the conjunction of (i) – (iii) and the following thesis: (iv) fictional individuals are contingently existing abstracta; they are non-concrete artifacts of our world and various other possible worlds.  Takashi Yagisawa has recently provided a number of arguments designed to show that Creationism is unjustified.  I here critically examine three of his challenges …

Federal Sentencing During The Interregnum: Defense Practice As The Blakely Dust Settles , Ian Weinstein, Nathaniel Z. Marmur

Faculty Scholarship

Although the long term impact of Blakely v. Washington is not yet clear, no one can doubt that the case raises a host of immediate, significant and perplexing practical questions for federal criminal defense attorneys. The Supreme Court has granted certiorari in a pair of cases raising Blakely issues and oral argument is scheduled for October 4, 2004. It seems likely that the Supreme Court will offer some guidance by Thanksgiving. Until the Court rules, uncertainty will continue as the lower courts interpret Blakely in disparate ways. Once the Court does rule, many hard questions may remain unanswered. This article …

To Be Brown In Brazil: Education And Segregation Latin American Style Colloquium - Relearning Brown: Applying The Lessons Of Brown To The Challenges Of The Twenty-First Century, Tanya K. Hernandez

Faculty Scholarship

As a scholar who studies civil rights movements from a comparative perspective, the commemoration of the fiftieth anniversary of the Brown v. Board of Education1 decision causes me to query the power of Brown as a symbol of equality outside of the United States. Because there is a larger community of African descendants living in Latin America and the Caribbean than there is in the United States, examining the role of Brown in Latin America and the Caribbean is particularly worthwhile. Furthermore, focusing on the Latin American and Caribbean contexts is also relevant due to the significant influence of the …

When Two Become One: Views On Fletcher's "Two Patterns Of Criminality", Deborah W. Denno

Faculty Scholarship

George Fletcher's Rethinking Criminal Law (“Rethinking”) is the ultimate cut-to-the-chase treatise. The book does not belabor the frailties of existing criminal law, but rather predicts an overhaul of much of its doctrine. This essay marks a tribute to Rethinking's influence by examining two of the book's well known “patterns of criminality”: (1) “manifest criminality,” which proposes that crimes are acts that any “objective” observer would clearly recognize as illegal without knowing anything about the mental state of the person committing those acts, and, in stark contrast, (2) “subjective criminality,” which suggests that crimes are consciously intended and experienced only by …

Body And Soul Under The Law, And The Response From Law And Literature In Bartleby, The Scrivener And Billy Budd, Sailor Symposium: The Failure Of The Word, Thane Rosenbaum

Faculty Scholarship

The values of the American legal system, and the annual Sports Illustrated swimsuit issue, have at least one thing in common: both are unquestionably, if not shamelessly, body conscious. Nothing triggers legal exposure with greater certainty than an injury to the human body. The body is the locus of the law's remedial obsessions. Unless the body is bruised, some scar is left, an essential piece of anatomy is altered, or some damage takes place in a material, external sense to objects that have definable, tangible characteristics, the law is without moral force or conviction.

Collective Guilt And Collective Punishment, George P. Fletcher

Faculty Scholarship

Attitudes toward collective guilt in the Middle East require us to take a closer look at guilt in the Bible. It turns out the text of Genesis is conflicted. Some passages support a theory of guilt linked with the inevitability of cleansing and punishment; other passages appear to treat guilt as a psychological state that might be cured by a confession of sins. The tension is important today in trying to understand whether the collective guilt of nations should also entail collective punishment.

Market Bubbles And Wasteful Avoidance: Tax And Regulatory Constraints On Short Sales, Michael R. Powers, David M. Schizer, Martin Shubik

Faculty Scholarship

In recent years, a speculative bubble in Internet stocks has burst and several "blue chip" firms have failed amidst high profile allegations of corporate misconduct. Why did high-tech start-ups with no earnings attain such lofty valuations? Why didn't sophisticated investors keep prices at saner levels? And why didn't more sophisticated investors look past accounting gimmicks much earlier to uncover problems at Enron and other firms? More generally, why did the mechanisms of market efficiency prove inadequate? While there obviously is no single answer to these complex questions, this Article focuses on one piece of the problem: U.S. tax and regulatory …

Access To Health Care In Texas: A Patient-Centered Perspective, Laura Hermer, William J. Winslade

Faculty Scholarship

Access to health coverage in Texas is, and continues to be, an urgent policy issue. This article provides an overview and evaluation of the primary state- or local-based and private financial means through which Texans gain access to health care, and offers suggestions to the Texas Legislature to help improve coverage access.

The Timing, Intensity, And Composition Of Interest Group Lobbying: An Analysis Of Structural Policy Windows In The States, John M. De Figueiredo

Faculty Scholarship

This is the first paper to statistically examine the timing of interest group lobbying. It introduces a theoretical framework based on recurring “structural policy windows” and argues that these types of windows should have a large effect on the intensity and timing of interest group activity. Using a new database of all lobbying expenditures in the U.S. states ranging up to 25 years, the paper shows interest group lobbying increases substantially during one of these structural windows in particular--the budgeting process. Spikes in lobbying during budgeting are driven primarily by business groups. Moreover, even groups relatively unaffected by budgets lobby …

Monopsony As An Agency And Regulatory Problem In Health Care, Peter J. Hammer, William M. Sage

Faculty Scholarship

The article is organized as follows. Part I returns to the source, explaining the controversy in Kartell, examining Breyer's opinion, and summarizing its impact on other courts. Part II looks at Kartell through the lens of classic monopsony theory involving suppliers, producers, and consumers, and focuses on the opinion's oversimplification of the relationship between health insurers and insured individuals. It further considers whether lower input prices result in lower consumer prices in the endproduct market, and, therefore, whether monopsony power can be welfare-enhancing. Part III evaluates Kartell's disregard of other important principal-agent problems in health care that arguably influence the …

Law's Signal: A Cueing Theory Of Law In Market Transition, Robert B. Ahdieh

Faculty Scholarship

Securities markets are commonly assumed to spring forth at the intersection of an adequate supply of, and a healthy demand for, investment capital. In recent years, however, seemingly failed market transitions - the failure of new markets to emerge and of existing markets to evolve - have called this assumption into question. From the developed economies of Germany and Japan to the developing countries of central and eastern Europe, securities markets have exhibited some inability to take root. The failure of U.S. securities markets, and particularly the New York Stock Exchange, to make greater use of computerized trading, communications, and …

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Faculty Scholarship

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religiousf aith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughyul contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

Settlement Advocacy, Kay Elkins-Elliott, Frank W. Elliott

Faculty Scholarship

For many years, law schools have based most of their "practical" instruction on the adversary system's last choice: trials and appeals. First year students are taught how to write an appellate brief and how to make an appellant argument. Maybe this is good, since the odds are that any given student will never again write a brief or make such an argument. After the first year of law school, students are swept into trial advocacy courses, mock trial competitions, and appellate advocacy competitions: learning how to influence the minds of jurors and appellate judges. We all know that these activities …

Abstinence-Only Adolescent Education: Ineffective, Unpopular, And Unconstitutional, James Mcgrath

Faculty Scholarship

Abstinence-only and abstinence-only-until-marriage education programs, ostensibly designed to prevent unwanted pregnancy and sexually transmitted disease ("STD") infection, are a waste of valuable public health resources of both time and money. These ideologically based interventions interfere with serious, effective public health education and must be dismantled. Not only are abstinence-only programs ineffective for their intended purpose, they are dangerous in that they fail to protect our nation's youth against serious and potentially deadly diseases. Furthermore, these programs unconstitutionally violate both the Establishment Clause and the unconstitutional conditions doctrine.

Part I of this Article reviews the history of abstinence-only education funding legislation …

Intellectual Property Law And Indigenous Peoples: Adapting Copyright Law To The Needs Of A Global Community, Megan M. Carpenter

Faculty Scholarship

The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, …

Regulating By Litigation: The Epa's Regulation Of Heavy-Duty Diesel Engines, Andrew P. Morriss, Bruce Yandle, Andrew Dorchak

Faculty Scholarship

In this Article, the authors provide a case study of heavy-duty diesel engine regulation under the Clean Air Act, which reveals how the Environmental Protection Agency (EPA) chooses various means of regulation at different times. The Article relates the EPA's choices to the incentives the agency faces. The Article also shows how the different forms of regulatory activity influence agency regulations. Finally, the Article concludes with a critique of regulation-by-litigation as a means of imposing substantive rules.

The Private Foundation's Topsy Turvy Road In The American Political Process, William H. Byrnes Iv

Faculty Scholarship

This article studies this American political debate on the charitable tax exemption from 1864 to 1969, in particular, the debate regarding philanthropic, private foundations. The article's premise is that the debate's core has little evolved since that between the 1850s and 1870s. To create perspective, a short brief of the modern economic significance of the foundation sector follows. Thereafter, the article begins with a review of the preand post-colonial attitudes toward charitable institutions leading up to the 1800s debates, illustrating the incongruity of American policy regarding whether and to what extent to grant charities tax exemption. The 1800s state debates …

Comment: A Public Choice Perspective On The Federal Circuit, Andrew P. Morriss

Faculty Scholarship

The Federal Circuit is different from other federal courts in important ways. Professor Dreyfuss has done pioneering work on the Federal Circuit as an institution and her article in this Symposium extends that work. As a nonexpert on patent law, my contribution to this Symposium is not to offer a substantive critique of the Federal Circuit's patent law jurisprudence. Instead, I will apply the public choice perspective to this particular judicial institution. This perspective includes some background thinking about how the federal judiciary works as an institution and about how judicial background affects how judges decide things.

Homesteading Rock: A Defense Of Free Access Under The General Mining Law Of 1872, Andrew P. Morriss, Roger E. Meiners, Andrew Dorchak

Faculty Scholarship

The Mining Law of 1872 is one of the most reviled federal land laws, regularly drawing attacks as anachronistic, corporate welfare, a relic of pioneer days, and a source of major environmental problems. Born out of the experience of the nineteenth century mineral rushes, the Mining Law allows individuals to privatize both the surface estate and the mineral rights to public land containing minerals (with some exceptions) without requiring a significant payment to the public treasury for the land This "giveaway" aspect of the law draws the loudest protests. The authors argue that it is inappropriate to measure the net …

Birth After Death: Perpetuities And The New Reproductive Technologies, Sharona Hoffman, Andrew P. Morriss

Faculty Scholarship

The Rule Against Perpetuities ("Rule" or "RAP") has long terrorized law students and lawyers alike: "no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." Despite this deceptively simple formulation, the Rule's complexities have bedeviled generations of property students and practitioners on both sides of the Atlantic. Reformers argue that the Rule's complexity is unnecessary to achieve the Rule's objectives and turns it into merely a malpractice trap.

Despite this "reign of terror," the Rule continues to apply in various forms in most …

[N]Ot A Story To Pass On: Constructing Mothers Who Kill, Susan Ayres

Faculty Scholarship

Toni Morrison has said in her Nobel acceptance speech, “We die. That may be the meaning of life. But we do language. That may be the measure of our lives.” How we “do language” in judicial decisions about infanticide can perhaps be compared to and informed by fiction such as Toni Morrison’s Beloved.

Beloved provides a fictional account of the life of a historical woman, a slave who escaped to freedom and then attempted to kill all four of her children, successfully killing one when her master came to claim her under the Fugitive Slave Act. In addition to …

Passports And Nationality In International Law, Adam I. Muchmore

Faculty Scholarship

Shifts in state control over territory can have substantial consequences for the nationality of individuals. This Article explores situations where an individual finds that the state which issued him a passport no longer recognizes his nationality. The law of binding state action, a set of broadly-accepted rules regulating state representations to other states, may provide more protection for passport-holders than the “soft” norms of human rights law.

So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports

Faculty Scholarship

Prior to 1970, the term "domestic violence" referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners. Today, of course, domestic violence is a household word. After all, it has now been ten years since the revelation of football star O.J. Simpson's history of battering purportedly sounded "a wake-up call for all of America"; ten years since Congress enacted legislation haled as "a milestone . . .truly a turning point in the national effort to break the cycle" of violence; and twenty years since Farrah Fawcett's portrayal of Francine Hughes in the movie The …

Arbitral Law-Making, Thomas E. Carbonneau

Faculty Scholarship

Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how …