Digital Commons Network^™

The Plausibility Of Legally Protecting Reasonable Expectations, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Role Of Corporate Law In French Corporate Governance, James A. Fanto

Faculty Scholarship

No abstract provided.

Foreword Symposium: Fourth Annual Mid-Atlantic People Ofcolor Legal Scholarship Conference: Law And Literature: Examining The Limited Legal Imagination In The Traditional Legal Canon, Sheila R. Foster

Faculty Scholarship

The Fourth Annual Mid-Atlantic People of Color Legal Scholarship Conference, which took place at Rutgers Law School in Camden on February 12-14, 1998, poignantly captured the theme around which the conference was organized. The theme of the conference was "Law and Literature: Examining the Limited Legal Imagination in the Traditional Legal Canon." True to the theme of the conference, many presenters sought to expand our collective imagination through poetry, fiction, and narrative. The presentations were intellectually stimulating and provocative. Indeed, there was a literary quality to some of the presentations. Perhaps most importantly, the conference itself, in the tradition of …

Extraterritoriality And Conflict-Of-Laws Theory: An Argument For Judicial Unilateralism, William S. Dodge

Faculty Scholarship

No abstract provided.

Weighing The Listener's Interest: Justice Blackmun's Commercial Speech And Public Forum Opinions, William S. Dodge

Faculty Scholarship

No abstract provided.

A Summary Of Mirjan R. Damaska's Evidence Law Adrift, Gordon Van Kessel

Faculty Scholarship

No abstract provided.

The Hubris Of The Master Chefs Of Diversity Stew, Michael K. Jordan

Faculty Scholarship

This article discusses the dangers of pursuing diversity, be it in the workplace, in a student body, or in a society, in a manner that puts a high level of control in the hands of a few experts using a specifc "recipe". These masters of diversity may pose serious threats to some basic principles that most Americans hold to be essential componenets of what it means to be free, self-determining individuals.

And Then There Was One, Douglas R. Heidenreich

Faculty Scholarship

In the twentieth century's second decade, Minneapolis lawyers created four night law schools, all of which William Mitchell College of Law numbers among its predecessor institutions. By 1940, a single law school remained, an amalgam of the original four. It would unite in 1956 with its St. Paul counterpart to form William Mitchell College of Law.

Foreword Symposium: Fourth Annual Mid-Atlantic People Ofcolor Legal Scholarship Conference: Law And Literature: Examining The Limited Legal Imagination In The Traditional Legal Canon, Sheila R. Foster

Faculty Scholarship

The Fourth Annual Mid-Atlantic People of Color Legal Scholarship Conference, which took place at Rutgers Law School in Camden on February 12-14, 1998, poignantly captured the theme around which the conference was organized. The theme of the conference was "Law and Literature: Examining the Limited Legal Imagination in the Traditional Legal Canon." True to the theme of the conference, many presenters sought to expand our collective imagination through poetry, fiction, and narrative. The presentations were intellectually stimulating and provocative. Indeed, there was a literary quality to some of the presentations. Perhaps most importantly, the conference itself, in the tradition of …

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 …

Careers And Contingency, Gillian Lester

Faculty Scholarship

Disagreement among legal scholars over the phenomenon of "contingent employment" – work having limited hours, duration, or security – has led to disparate prescriptions for legal reform. For some, the best solution would be to either leave the market alone, or eliminate existing regulations that drive employers to create contingent jobs. Others believe current regulations do not go far enough and advocate reforms ranging from expanding mandatory benefits and protections to facilitating collective bargaining among contingent workers in order to restore such benefits as long-term security, training, and career advancement. The debate about law reform has centered partly on disputes …

The Challenge To Financial Regulators Posed By Social Security Privatization, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Charting No Man's Land: Applying Jurisdictional And Choice Of Law Doctrine To Interstate Compacts, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.

Comparative Investor Education, James A. Fanto

Faculty Scholarship

No abstract provided.

The Property Of Death, Tanya K. Hernandez

Faculty Scholarship

Who owns death and why do we care? The question of who owns death is implicitly deliberated each time a legal dispute ensues over who can direct the manner of a decedent's burial. There is no definitive legal rule as to who has the right to control the disposal of mortal remains because there is no agreement as to who owns a body after death or whether the cadaver is subject to traditional property rights. Although most states have probate laws and health codes which authorize a decedent (or in the alternative, a priority list of family members) to direct …

Regarding Rights: An Essay Honoring The Fiftieth Anniversary Of The Universal Declaration Of Human Rights Introduction: Locating Culture, Identity, And Human Rights Symposium In Celebration Of The Fiftieth Anniversary Of The Universal Declaration Of Human Rights, Tracy E. Higgins

Faculty Scholarship

The half-century since the drafting of the Universal Declaration of Human Rights' has been famously heralded as the "Age of Rights" and the concept of human rights described as "the only political-moral idea that has gained universal acceptance." During the same period, however, both terms defining the subject-human and rights-have become increasingly contested. Informed by the emergence of identity-based political movements, critics have attacked the category human has as bearing the baggage of Western Enlightenment assumptions about personhood and community, inherently racist, sexist, and classist. Theorists across the political spectrum have criticized the concept of rights as indeterminate, destructive of …

Justice From The Ground Up: Distributive Inequities, Grassroots Resistance, And The Transformative Politics Of The Environmental Justice Movement, Sheila R. Foster

Faculty Scholarship

In this Article, Professor Foster examines the environmental justice movement from the "ground up"-from the perspective of the predominantly poor, African-American residents of Chester, Pennsylvania who attempted to stop the clustering of waste facilities in their community. From this perspective, Professor Foster evaluates the manner in which the phenomenon of environmental injustice is framed, the efficacy of reforms in environmental decision-making processes, and the strategies and possibilities of grass roots efforts in achieving environmental justice. She argues that the distributive paradigm that often frames discussions of environmental injustice obscures the mechanisms and processes underlying inequitable outcomes, thwarting a full understanding …

Learning From The Unpleasant Truths Of Interfaith Conversations: William Stringfellow's Lessons For The Jewish Lawyer, Russell G. Pearce

Faculty Scholarship

As the religious lawyering movement expands, so too will the opportunities for interfaith conversations about lawyering. At the level of superficial pleasantries, these conversations will probably add warm feelings of camraderie but little else. When they advance to deeper levels of intellectual and emotional connection, they offer the potential for developing close friendships, learning significant new insights, and discovering hurtful differences. Only by risking the pain of such conversations can we gain the full benefit of interfaith conversation for enriching our "zest for spiritual living." This essay will employ the writings of William Stringfellow, a Christian lawyer and theologian, to …

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 …

Summer Musings On Curricular Innovations To Change The Lawyer's Standard Philosophical Map, James Coben

Faculty Scholarship

When Hamline’s participation in the FIPSE grant was announced several years ago, the Hamline community saw an opportunity to help achieve the stated strategic-plan objective to ensure that every graduating student “will have basic knowledge about ADR and the opportunity for simulation experience with ADR.” The FIPSE grant working-group established the following objectives to guide the curriculum-development effort: (a) emphasize the importance of ADR by formally recognizing it as “substance,” (b) help students confront the standard philosophical map of lawyers and promote an “alternative” definition of lawyer as “problem-solver,” (c) provide a baseline familiarity with rule vs. interest and position …

Kahan On Mistakes, Daniel B. Yeager

Faculty Scholarship

In Ignorance of Law Is an Excuse - but Only for the Virtuous, Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts
of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages. In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan …

Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau

Faculty Scholarship

One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …

Implied Wavier After Seminole Tribe, Kit Kinports

Faculty Scholarship

Part I of this Article briefly traces the history of the Supreme Court's Eleventh Amendment jurisprudence, focusing in particular on the opinions developing the doctrines of implied waiver and abrogation. Part II makes the case that the doctrine of implied waiver retains validity after Seminole Tribe, at least with respect to federal statutes passed pursuant to the Spending Clause that condition the receipt of federal funds on the states' waiver of the Eleventh Amendment and statutes passed under Congress's other Article I powers that regulate an activity voluntarily undertaken by the states. Finally, Part III considers other potential constitutional …

Hendricks And The Future Of Sex Offender Commitment Laws, Eric S. Janus

Faculty Scholarship

The Supreme Court's decision in Kansas v. Hendricks suggests that few constitutional limitations will be imposed. This article discusses the four elements imposed by the Court in Hendricks, and then discusses the likely implications of the decision, using civil commitment laws currently on the books and actual post-Hendricks decisions. The article concludes that the imbalance between commitments and discharges will cause commitment populations to grow over the foreseeable future. Eventually the huge costs of commitment schemes will force serious assessment of whether the facial logic of these programs hides seriously distorted resource allocation and anti-therapeutic side-effects.

Permissive Bankruptcy Abstention, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Rights, Wrongs, And Recourse In The Law Of Torts, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Authors As "Licensors" Of "Informational Rights" Under U.C.C. Article 2b, Jane C. Ginsburg

Faculty Scholarship

U.C.C. Articles 2B of the Uniform Commercial Code was designed primarily to regulate online and mass market transactions, particularly the licensing of computer software. Its effects, however, will extend to authors of works other than computer software. This Article considers the effects Article 2B would have on dealings between those authors and the exploiters of the authors' works. By reducing procedural barriers to the formation of licenses, Article 2B would make it all too easy for an author to assent to contract terms that may heavily favor an exploiter of the author's work. On the other hand, default contract terms …

Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard

Faculty Scholarship

The Superfund program is perhaps environmental law's best Rorschach test, in which those who write about the national effort to clean up contaminated sites disclose as much about their own philosophies of justice, democracy, and economic efficiency as about environmental legislation. The ten books reviewed here show deep conflicts among these values. I argue, based on these disparate judgments, that many of the Superfund debates have an almost religious character. The law has been shaped to fit the view that demonic polluters were, and remain, at work. The law also reflects a sense of higher duty to future generations – …

The Challenges Of Investigating Section 5k1.1 In Practice, Daniel Richman

Faculty Scholarship

From the very beginning, almost everyone familiar with the sentencing guidelines has recognized that substantial assistance motions pose a severe threat to the goal of horizontal equity in sentencing. The problem stems in part from the fact that any scheme using sentencing leniency to reward cooperation reduces the likelihood that two defendants of similar culpability and criminal history will receive the same sentence if one cooperates and the other doesn't. The damage, however, is potentially magnified by the particular system established by the federal guidelines: The absence of clear guidelines as to how cooperators should be treated makes it likely …

"Thinking Like A Lawyer" About Ethical Questions, William H. Simon

Faculty Scholarship

Suppose you had to pick the two most influential events in the recent emergence of ethics as a subject of serious reflection by the bar. Most likely, you would name the Watergate affair of 1974 and the appearance a few years earlier of an article by Monroe Freedman. The article was a discussion of what Freedman called the "Three Hardest Questions" surrounding the responsibilities of criminal defense lawyers^.

Of the two events, Watergate is the most famous but, for our purposes, the least important. It raised no challenging issues of professional responsibility. The lawyer conduct in Watergate that shocked …