Digital Commons Network^™

Give Me Liberty Or Give Me Death: Political Asylum And The Global Persecution Of Lesbians And Gay Men, Suzanne B. Goldberg

Faculty Scholarship

In a time marked by dramatic global change, women and men persecuted because they are lesbian or gay form part of the growing pool of international refugees. Their persecution takes the form of police harassment an assault, involuntary institutionalization and electroshock and drug "treatments," punishment under laws that impose extreme penalties including death for consensual lesbian or gay sexual relations, murder by paramilitary death squads, and government inaction in response to criminal assaults against lesbians and gay men. The survival of these women and men, like the survival of all refugees, depends on obtaining asylum outside the home country. Yet, …

Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt

Faculty Scholarship

This Article addresses three perplexing problems about proposed principles of self-restraint for political decision and advocacy within liberal democracies. It considers the nature of convictions that are based on highly personal experiences and asks what their political status should be. It explores the subtle relationship between proposed principles of restraint and overarching religious and other comprehensive views. It argues that a plausible principle of restraint must appeal to people with various religious and other comprehensive views and must be suited to the particular conditions of a given society.

A Tribute To Justice Byron R. White, Lewis F. Powell Jr., Rhesa H. Barksdale, David M. Ebel, Lance Liebman, Charles Fried

Faculty Scholarship

Of 107 Justices in 205 years, only twelve have served longer than thirty years, and every long-serving Justice has made a substantial contribution to the institution - offering a steady and dedicated response to the judicial challenges of an era, asserting leadership at a time of national crisis, or articulating a large constitutional vision. The personal qualities and life experiences that a new Justice brings to the Court contain the seeds of the individual's judicial service. Justice White, a skeptical but unflinching democrat, was no exception.

Did The First Justice Harlan Have A Black Brother?, James W. Gordon

Faculty Scholarship

This Article summarizes the careers of James, John, and Robert Harlan. It then examines the evidence of the blood relationship between Robert Harlan and James Harlan, and speculates on the influence that John Harlan's contact with Robert Harlan might have had in shaping John's views on race. Finally, the Article reflects on the implications of the careers of John and Robert Harlan for our understanding of race in late nineteenth century America.

Marriage And The Income Tax, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

History, Tradition, The Supreme Court, And The First Amendment, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Making The Case For A Constitutional Right To Minimum Entitlements, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Corrective Justice For Moderns, George P. Fletcher

Faculty Scholarship

Once when I was reading a Soviet commentary on criminal procedure, a friend noticed the cyrillic title and asked whether the Russian book was fiction or nonfiction. My initial tendency was to give the straight response, "Nonfiction, of course," but then I thought about what I was reading and began to laugh. Now if someone asked me whether Jules Coleman's Risks and Wrongs was fiction or nonfiction, I would want to give the straight reply. Thinking about the book, however, I hesitate. And I do not laugh.

It is becoming more and more difficult these days to distinguish fiction from …

The Political Economy Of Female Violent Street Crime, Deborah Baskin, Ira Sommers, Jeffrey A. Fagan

Faculty Scholarship

Ten years after the U.S. Attorney General's Task Force on Violent Crime considered problems of violence in the United States, and on the heels of a National Academy Sciences report on violence, the nation seems poised to begin a new "war on violence." Past "wars" on crime problems, including the recently stalemated "war on drugs" have focused primarily on males. This one promises to be no different. Violence continues to be viewed as the province of young males in urban areas. According to the Uniform Crime Reports, over 75% of homicide victims in 1990 were males, and over 85% of …

Copyright Without Walls?: Speculations On Literary Property In The Library Of The Future, Jane C. Ginsburg

Faculty Scholarship

This essay considers the application and adaptation of copyright law to the library of the future. In this "library without walls," works will be accessible by computer to users near and far. While a printed book usually is read by only one person at a time, that same book in digital format may be simultaneously consulted by as many users as have PCs linked by modem to the library. Where collecting quotations from printed sources today requires transcription or photocopying, in the library of the future it may be possible to download and print out excerpts, or even the entire …

Blackmail: The Paradigmatic Crime, George P. Fletcher

Faculty Scholarship

The ongoing debate about the rationale for punishing blackmail assumes that there is something odd about the crime. Why, the question goes, should demanding money to conceal embarrassing information be criminalized when there is nothing wrong with the separate acts of keeping silent or requesting payment for services rendered? Why should an innocent end (silence) coupled with a generally respectable means (monetary payment) constitute a crime? This supposed paradox, however, is not peculiar to blackmail. Many good acts are corrupted by doing them for a price. There is nothing wrong with government officials showing kindness or doing favors for their …

The Promise Of Participation, Susan P. Sturm

Faculty Scholarship

Professor Owen Fiss's seminal work, The Civil Rights Injunction, inspired a generation of scholars and practitioners to flesh out the significance of his insights. With remarkable prescience, he captured a moment in intellectual and legal history and created a vocabulary that continues to shape the debate over the court's role in public law litigation. The Allure of Individualism continues the Fiss tradition of capturing a singular, emblematic issue and sketching with broad strokes the contours of emerging debate. His springboard is Martin v. Wilks, a case that aptly frames the current dilemmas and choices posed by structural injunction litigation. Martin …

Legacy And Future Of Corrections Litigation, Susan P. Sturm

Faculty Scholarship

This Article attempts to provide a framework for assessing the legacy and future of public interest advocacy in one particular area – corrections. It documents a shift from a test case to an implementation model of advocacy, and urges the development of effective remedial strategies as a method of linking litigation to a broader strategy of correctional advocacy.

I have chosen to focus on this particular institutional context for several reasons. On a pragmatic level, the Edna McConnell Clark Foundation, which for the last twenty years has been the primary source of funding for corrections litigation by private, nonprofit organizations, …

What Difference Does It Make Whether Corporate Managers Have Public Responsibilities?, William H. Simon

Faculty Scholarship

Alan Wolfe's thoughtful paper resonates with what I think we should call the Washington and Lee School of corporate jurisprudence.' It elaborates on that School's brilliant intellectual history of legal theorizing about the corporation and on its powerful critique of conservative arguments against managerial responsiveness to nonshareholder interests.

It also shares, I fear, a tendency to overestimate the practical stakes of abstract concepts of the corporation and fiduciary duties. This tendency takes three forms: first, a historical picture that portrays recent developments as a promising departure rather than business-as-usual; second, an assumption that certain abstract conceptions of the corporation (for …

A Vigil For Thurgood Marshall, Eben Moglen

Faculty Scholarship

Three days after his death, on January 27th, Thurgood Marshall came to the Supreme Court, up the marble steps, for the last time. Congress had ordered Abraham Lincoln's catafalque brought to the Court, and on it the casket of Thurgood Marshall lay in state. His beloved Chief, Earl Warren, had been so honored in the Great Hall of the Court, and no one else. Congress made the right decision about the bier, and it spoke with the voice of the people: no other American, of any age, so deserved to lie where Lincoln slept.

To him, all day on Wednesday, …

The "Proper" Scope Of Federal Power: A Jurisdictional Interpretation Of The Sweeping Clause, Gary S. Lawson, Patricia B. Granger

Faculty Scholarship

The year is 1790-shortly after ratification of the Federal Constitution. Imagine that the newly formed U.S. Congress, pursuant to its constitutionally enumerated power to "establish Post Offices and post Roads,"2 authorizes construction of a post road between Baltimore and Philadelphia.3 Suppose further that the most convenient route runs straight through, for example, Mrs. Barrington's cow pasture. Mrs. Barrington values her cows' serenity and strongly urges the government to build its road around her pasture. Congress nonetheless enacts a statute instructing the President and his subordinates to build the road across Mrs. Barrington's land. The enabling statute does not authorize compensation …

Thayer Versus Marshall, Gary S. Lawson

Faculty Scholarship

Professor Nagel's intriguing paper1 suggests that James Bradley Thayer's clear error rule of constitutional adjudication 2 is not an effective vehicle for controlling, and indeed may even exacerbate, the tendency toward invective that often characterizes modem court decisions and legal arguments. Professor Nagel is too charitable. To the extent that Thayer's article has had an influence on either the style or substance of modem constitutional law, that influence has been even more pernicious than Professor Nagel lets on. The source of that problem, however, is less the clear error rule itself than the premises that generate and, in Thayer's view, …

The Habeas Hagioscope, Larry Yackle

Faculty Scholarship

If you would understand American law, American politics, and the elusive difference between the two, look no further. Federal habeas corpus for state prisoners opens a window on the workings of our national government, overt and covert. I mean in this Article to describe the scene that is revealed. A rich account of experience in recent years can contribute to a deeper understanding of our government by arranging the players and the set in context and sequence. The record will show a number of things to be true.

Constitutional Identity, George P. Fletcher

Faculty Scholarship

The aim of this Article is to introduce and clarify a new way of thinking about decisions in close cases, particularly those that address basic issues of constitutional law. When constitutional language fails to offer an unequivocal directive for decision, the recourse of the judge is not always to look "outward" toward overarching principles of political morality. In an illuminating array of cases, the acceptable way to resolve the disputes and to explain the results is to turn "inward" and reflect upon the legal culture in which the dispute is embedded. The way to understand this subcategory of decisions is …

Conflicts Of Copyright Ownership Between Authors And Owners Of Original Artworks: An Essay In Comparative And International Private Law, Jane C. Ginsburg

Faculty Scholarship

Most, if not all, copyright laws distinguish between ownership of the incorporeal copyright, and ownership of chattels. A generally-accepted corollary holds that alienation of the chattel that constitutes the material form of a copyrighted work does not carry the copyright with it. Applying this principle to works of the visual arts, it should be clear that sale of a painting, even if it is the only "copy" of a work, is not a transfer of the exclusive rights under copyright to reproduce the work or to create derivative works based on the painting. Similarly, ownership of the copyright confers no …

Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill

Faculty Scholarship

To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the …

For Mert Bernstein, Inventor Of A Field, Lance Liebman

Faculty Scholarship

Life brings odd cycles and conjunctions.

More than twenty years ago, as a brand new law teacher, I was assigned by Dean Derek Bok to teach "urban law." I said, "Derek, what is that?" He said: "You have been Assistant to Mayor Lindsay of New York for two years. You figure it out."

What He Was For, Eben Moglen

Faculty Scholarship

It will be said frequently in the years to come that an era in American history died when Thurgood Marshall left us. It will take some time for us to absorb the truth, for our sadness to be replaced by desperation. More than an era closed when his gallant heart failed him at last; in every corner of our battered country, maimed as it is by years of recklessly cultivated hatred, we lost the voice that constantly called us to attend to the work of our salvation.

Preface: Symposium On Intellectual Property Law Theory, Wendy J. Gordon

Faculty Scholarship

For primary contributors to this symposium we have sought out people whose thoughts on intellectual property are not well known to readers of the standard law reviews. We are very gratified by the results. Of our three philosopher contributors, none has published much explicitly discussing intellectual property before, though the work of each of them is highly relevant to the topic; our economist, who publishes most often in philosophic, economic and communications journals, here brings his various perspectives to bear; our practitioner contributor proves that the most esoteric of academic topics - postmodern literary theory - has relevance to everyday …

The Jewish Perspective In International Law, Pnina Lahav

Faculty Scholarship

Let me start with two qualifications.

First, this question: is defining the term "Jewish" essential to an exploration of a Jewish vision of international law? The historian Jacob Talmon recalls an exchange between a Gentile and a Jew:

"I thought you were Jewish," said the Gentile.

"Well," answered the Jew, "by a biological standard I am Jewish, since both of my parents were Jewish, but it is 20 years since I sent a letter of resignation to the Jewish community."

"I see," answered the Gentile, "you mean that Jewishness is like a club."

The anecdote captures the evasive quality of …

Throwing Stones At The Mudbank: The Impact Of Scholarship On Administrative Law, Ronald A. Cass, Jack M. Beermann

Faculty Scholarship

The impact of administrative law scholarship on administrative law seems at first blush both a relatively straightforward issue and one that academicians should be especially eager to engage. But there is reason to doubt both propositions. First, any effort to grapple with this topic compels the conclusion that the issue is by no means straightforward. As Peter Strauss recently observed, the question of the influence of administrative law scholarship necessarily becomes as well the influence of active engagement in the practice of administrative law on scholarship.' Moreover, the questions implicated in this assessment cannot be narrowly compassed. The topic requires …

Defendants' Brief In The School Finance Case: Mcduffy V. Robertson: An Excerpt And A Summary, Douglas H. Wilkins, Robert H. Blumenthal, Mary Connaughton

Faculty Scholarship

The wisdom of promoting public education in the Commonwealth was recognized by the earliest settlers, the framers of the Constitution, and many subsequent legislatures, officials, educators and citizens. The opinions of the Department, the Secretary of Education, the Governor and various educators, contained in the stipulation, demonstrate that a policy of supporting public education is as important today as ever.²

The implementation of this policy goal by the Legislature and municipalities involves choices that are at the heart of representative government: how much public money to raise, how best to allocate the money among education and the many other …

Foreword To An Interview With Fred Korematsu, Larry Yackle

Faculty Scholarship

One afternoon in the spring of 1942, Fred Korematsu was arrested for doing what would have been perfectly innocent and natural for millions of other American citizens, but was for him a criminal offense. He went for a stroll with his fianc6e along a public street in San Leandro, California.' By order of General John L. DeWitt, Americans of Japanese ancestry had been directed to remain in their homes during daylight hours and to ready themselves for transport to "assembly centers," where they would wait out the war.' Korematsu's family had already reported to such a center near San Francisco, …

Foreword: Two Visions Of The Nature Of Man, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

This year, for the first time in its ten-year history, The Federalist Society convened in a world no longer haunted by the specter of a global communist empire. Seventy-four years after its creation, Lenin's Union of Soviet Socialist Republics had shattered into many fragments; more importantly, his political philosophy had taken its well-deserved place on the "ash heap of history."

The Reception Of Canon Law And Civil Law In The Common Law Courts Before 1600, David J. Seipp

Faculty Scholarship

English common law practitioners and judges borrowed much of the conc structure for their body of legal knowledge from the legal culture of continen Europe over the centuries. Their surviving writings show a marked increa the use of Roman legal classifications in the century before 1600: public private, criminal and civil, real and personal, property and possession, con and delict, among other examples. Those who perpetuated the learning of English royal courts in the sixteenth century had begun fitting it in framework borrowed from the two great bodies of 'learned law' taught in universities of Europe: civil (Roman) law and …