Digital Commons Network^™

West's 1989 Texas Rules Of Court - One Step Forward, One Step Back, Jim Paulsen, James Hambleton

Faculty Scholarship

As with many of its other publications, West Publishing Company dominates the Texas market with its "desk copies" of Texas court rules. Over the past few years, those rules have undergone considerable mutation--in color, from white to blue to gray to red--and in length, from one volume to two volumes. There have also been numerous substantive changes. In view of the evolving nature of the "Texas Rules of Court" and the widespread use of these desk books by Texas attorneys, we feel it is about time to chronicle a few of the changes, make some constructive suggestions for improvement and, …

Electronic Technology And The Law Firm Librarian, James Hambleton

Faculty Scholarship

Automating the law firm library requires understanding the culture and structure of the firm, and the abilities to work with systems personnel and to select appropriate software. Mr. Hambleton describes these processes and provides examples.

The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger

Faculty Scholarship

The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically …

Harry Kalven, The Proust Of The First Amendment, Lee C. Bollinger

Faculty Scholarship

Reading A Worthy Tradition makes one nostalgic. For the generation of scholars who cut their first amendment teeth on Harry Kalven's articles, this book offers the experience of a recaptured past. The question is, however, does it offer anything more?

The Single European Act: A Constitution For The Community?, George A. Bermann

Faculty Scholarship

If proof were needed that the European Economic Community is still the product of a careful tempering of integrationist impulses with preoccupations of national sovereignty, the recently ratified Single European Act (Single Act or Act) amply supplies it. Although the Single Act represents the most comprehensive revision to date of the Treaty of Rome (EEC Treaty), which established the European Economic Community (European Community or Community), it also reflects the continuing vitality of the view that functional change within the Community takes priority in time over structural and institutional reform. Rather than place European integration on a new set of …

Delaware's Intermediate Standard For Defensive Tactics: Is There Substance To Proportionality Review?, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

The courts have long struggled with a standard for reviewing management's efforts to deter or defeat hostile takeovers. The usual standards of review in corporate law, the business judgment rule and the intrinsic fairness test, do not seem adequate when courts must evaluate defensive measures that implicate both management's business acumen and its loyalty to shareholder interests. Because evaluating a sale of the company is a complex business decision, management's response to a takeover bid resembles the normal business decisions that the business judgment rule largely insulates from judicial review.At the same time, however, a hostile takeover creates a potential …

Reflections On Holding And Dictum, Kent Greenawalt

Faculty Scholarship

The aim of these reflections, which adopt the perspectives of ordinary judges and lawyers, is to try to help clarify what is uncontroversial about the distinction between holding and dictum, to explain what is troublesome about it, to provide – in fairly sketchy form – a way of understanding the authority of various legal formulations that do not fit indisputably or wholly comfortably in the category of holding or that of dictum, and to suggest a conceptual vocabulary for expressing the practical realities I consider.

In the autumn of 1986, I taught a course in Legal Method for beginning students …

Demarginalizing The Intersection Of Race And Sex: A Black Feminist Critique Of Antidiscrimination Doctrine, Feminist Theory And Antiracist Politics, Kimberlé W. Crenshaw

Faculty Scholarship

One of the very few Black women's studies books is entitled All the Women Are White; All the Blacks Are Men, But Some of Us are Brave. I have chosen this title as a point of departure in my efforts to develop a Black feminist criticism because it sets forth a problematic consequence of the tendency to treat race and gender as mutually exclusive categories of experience and analysis. In this talk, I want to examine how this tendency is perpetuated by a single-axis framework that is dominant in antidiscrimination law and that is also reflected in feminist theory and …

Seasoned To The Use, Carol Sanger

Faculty Scholarship

Two recent novels, Presumed Innocent and The Good Mother, have more in common than critical success, longevity on best-seller lists and big-name movie adaptations. Both books are about law: Presumed Innocent is a tale of murder in the big city; The Good Mother is the story of a custody fight over a little girl. Central characters in both books are lawyers. Turow is a lawyer, and Miller thanks lawyers. While the books could be classified in other ways – Presumed Innocent as mystery, The Good Mother as women's fiction – each meets a suggested genre specification of a legal novel: …

The Usefulness Of Ethical Codes, Nancy J. Moore

Faculty Scholarship

In 1986, the American Bar Association's House of Delegates endorsed a report which offered a "Blueprint for the Rekindling of Lawyer Professionalism."' Lawyers were urged to pursue "principle" over "profit ' " 2 and to abide by higher standards of conduct than the minimum required by the profession's disciplinary rules.3 This past year has witnessed a flurry of bar association activity aimed at implementing the recommendations of the professionalism report. On the part of the ABA, this activity culminated in the House of Delegates' decision last August to adopt four concrete proposals, each involving a statement of professional aspirations to …

Author's Response, Nancy J. Moore

Faculty Scholarship

There is no question that there are serious ethical issues confronting practicing lawyers on virtually a daily basis. There is also no question that law itself will never resolve all these issues, no matter how advanced a legal document like the Model Rules might be. This is true not only because the particular rules are often controversial (and sometimes wrong, as in the confidentiality provisions), but also because there is always discretion to be exercised and different considerations to be taken into account in the exercise of that discretion. The situation would not be significantly different even if the public …

"Bad" Judicial Activism And Liberal Federal-Courts Doctrine: A Comment On Professor Doernberg And Professor Redish, Jack M. Beermann

Faculty Scholarship

JUDUCIAL ACTIVISM IS often portrayed as a liberal vice. This perception is wrong both historically and, as Professor Redish argues, ³ currently as well. The federal judiciary has been and still is an activist institution, working with both substantive law and jurisdictional rules to achieve its own policy goals. It has done this in statutory, constitutional, and common-law matters. Specifically, the Supreme Court of the United States has actively-shaped the jurisdiction of the federal courts in a restrictive and generally conservative manner.

Professors Doernberg⁴ and Redish attack this last form of activism by the federal courts, activism in shaping …

Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons

Faculty Scholarship

Mark Tushnet's new book offers no such counsel. Mainly a critique of interpretative theories, its conclusions are profoundly skeptical. Tushnet's central claim is that judicial review and constitutional theory cannot possibly perform their assigned functions, and that liberalism is to blame. This review will focus on those facets of the book.

Aids, Astrology, And Arline: Towards A Causal Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that ‘[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program].’1 In School Board v. Arline,2 the Supreme Court held that a school teacher with a history of infectious tuberculosis was an ‘individual with handicaps' protected by section 504,3 and that the determination of whether she was ‘otherwise qualified’ to teach elementary school required a sound medical assessment of the risks …

Dispute Over The United States’ Denial Of A Visa To Yasir Arafat, Sadiq Reza

Faculty Scholarship

On November 26, 1988, the United States denied a visa to Yasir Arafat, Chairman of the Executive Committee of the Palestine Liberation Organization (PLO), when he sought to enter the United States to attend the forty-third session of the United Nations (UN) in New York. The denial rekindled a forty-year-old dispute between the United States and the UN over the extent to which the United States may, under the terms of the Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations (Headquarters Agreement), restrict entry to persons seeking to enter the …

Efficient Remedies For Breach Of Warranty, Kenneth Chapman, Michael J. Meurer

Faculty Scholarship

This article attempts to suggest valuable refinements and extensions of the economic theory of warranty by explicitly considering the choice of remedies for breach of warranty in conjunction with the choice of warranty protection itself. In particular, it offers explanations for the prevalence of replacement terms rather than refund terms in warranties. Economists studying the general issue of breach of contract have noted that the choice of remedy has important implications for risk sharing, renegotiation, transaction-specific investment, and the incentive to breach.5 This article derives much of its insight from the recognition that work on the economics of contract breach …

Bracton, The Year Books, And The "Transformation Of Elementary Legal Ideas" In The Early Common Law, David J. Seipp

Faculty Scholarship

The language of the common law has a life and a logic of its own, resilient through eight centuries of unceasing talk. Basic terms of the lawyer's specialized vocabulary, elementary conceptual distinctions, and modes of argument, which all go to make “thinking like a lawyer” possible, have proved remarkably durable in the literature of the common law. Two fundamental distinctions—between “real” and “personal” actions and between “possessory” and “proprietary” remedies—can be traced back to their early use in treatises of the first generations of professional common law judges and in reports of courtroom dialogue from the first generations of professional …

National Law And Commercial Justice: Safeguarding Procedural Integrity In International Arbitration, William W. Park

Faculty Scholarship

The law chosen to govern the merits of an international contract dispute does not always lead to results hat satisfy an arbitrator's personal sense of what is right. The arbitrator therefore may be tempted to resolve the dispute according to his own notion of justice. Seduced away from the rules of the otherwise applicable law, the arbitrator may take on unauthorized powers of amiable composition. While most international arbitrators are conscientious in respecting the bounds of their mission, some have been known to boast of their skill in finding ways to bypass the established rules of the party-chosen law. …

Faith (Healing), Hope And Charity At The Fda: The Politics Of Aids Drug Trials, George J. Annas

Faculty Scholarship

AIDS forces us to confront our mortality, the limits of modern medicine and the contours of our compassion. How we respond is a measure of our society and a reflection of our values and priorities. As a fundamentally death-denying society, our response has been hampered by denial and shaped by faith that a technological fix will make the AIDS epidemic go away. Technology is our new religion, our "modern" way to deal with death. As novelist Don DeLillo has one of his characters put it to another who is worried about death: you can deny it, you can put your …

The Supreme Court, Privacy, And Abortion, George J. Annas

Faculty Scholarship

Although states can regulate abortions after the point of fetal viability (or, more accurately, can restrict the induction of premature birth), since Roe only 13 states have enacted laws to restrict such abortions.8 Decisions after Roe In more than a dozen major cases over the succeeding 15 years, the Supreme Court applied Roe to specific attempts by some states to limit abortion rights during the first and second trimesters. [...]1989, the Court consistently struck down almost all such limitations. The Court did find it constitutional, however, for the state and federal governments to refuse to fund abortions through the Medicaid …

Legal Policy Conflicts In International Banking, William W. Park

Faculty Scholarship

The world debt crisis might never have occupied the front pages of our newspapers during much of the past decade if more attention had been paid to the advice old Polonius gave to young Laertes. More than one Secretary of the Treasury has tried to control a multibillion dollar problem of money addiction, whose resolution sometimes seems to lie in the realm of financial eschatology.

Aids, Astrology, And Arline: Towards A Casual Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program]."' In School Board v. Arline, the Supreme Court held that a school teacher with a history of infectious tuberculosis was an "individual with handicaps" protected by section 504, and that the determination of whether she was "otherwise qualified" to teach elementary school required a sound medical assessment of the risks of contagion posed by …

Consolidating The Preliminary Injunction Hearing And Trial: Changing The Rules In The Middle Of The Game, Arthur D. Wolf

Faculty Scholarship

In this Article the Author addresses the issues surrounding consolidation, the situation that arises when a court decides the merits of a dispute based solely on the record produced at a hearing on motion for a preliminary injunction. The Author identifies some of the more flagrant abuses that trial and appellate courts have committed in reaching the merits after only a hearing on a motion for preliminary relief. The proposed amendments discussed in the Article would serve both courts and parties. They would prevent the kind of abuses discussed in this article by requiring that the parties be informed of …

The Popular Image Of The American Lawyer: Some Thoughts On Its Eighteenth And Nineteenth Century Intellectual Bases, James W. Gordon

Faculty Scholarship

This essay explores the ambiguous position lawyers occupy in the popular mind in America by identifying some of the ideas which contributed to the schizophrenic popular attitude toward the legal profession in the period between the American Revolution and the Civil War. Many of the stock anti-lawyer themes and many of the intellectual sources of the profession's strength are clearly visible by the end of this period. The Author explores this problem, first by relating it to recent scholarship in American history describing the struggle between republicanism and liberalism at the time of the Founding. The way the profession was …

Amici For Appellees: Brief For Bioethicists For Privacy As Amicus Curiae Supporting Appelles Brief For Bioethicists For Privacy As Amicus Curiae Supporting Appellees, George J. Annas, Leonard H. Glantz, Wendy K. Mariner

Faculty Scholarship

Amicus is an ad hoc group of 57 philosophers, theologians, attorneys and physicians .. .who teach medical ethics to medical students and physicians. The members believe that permitting competent adults to make important, personal medical decisions in consultation with their physician is a fundamental principle of medical ethics, and that the doctor-patient relationship deserves the constitutional protection the Court has afforded it under the right of privacy.

The Politics Of Transplantation Of Human Fetal Tissue, George J. Annas

Faculty Scholarship

Research involving human fetal tissue has been the subject of intense political debate in this country for almost two decades, and the use of fetal tissues in transplantation continues this controversy in another forum. Since Roe v. Wade ,1 the landmark decision on abortion by the U.S. Supreme Court in 1973, the federal government has focused public attention on fetal research by creating panels of experts. "3 This conclusion was accepted on a vote of 15 to 2, and included recommendations that the decision to abort be kept independent of the decision to retrieve and use fetal tissue, that recipients …

Why Clinical Trials Of Aids Vaccines Are Premature, Wendy K. Mariner

Faculty Scholarship

No abstract provided.

Methods Of Constitutional Argument, Philip C. Bobbitt

Faculty Scholarship

The methods of constitutional argument1 that may be denominated, historical, textual, doctrinal, structural, prudential and ethical, have not grown according to a plan. They have grown up in the United States because of our history and traditions – the sort of people we have become and are still becoming. To that extent, they are arbitrary and contingent. They are not the same for every culture. I would be surprised if they were very different for Canada because Canadians and Americans share so much of the same legal tradition. One can, however, easily imagine cultures around the world where legal arguments …

Current Developments Concerning The Settlement Of Disputes Involving States By Arbitration And The World Court – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Our moderator has asked me to talk about the dialogue between the United States and the Soviet Union. With respect to the general contours of the U.S. proposal, I think it is a very constructive one. I do support it, and I urge you all to study it, comment upon it, and try to improve it to take it a bit further. The main feature of it that I want to mention today is the idea of affirmative enumeration of categories of disputes that would be submitted to the Court for jurisdiction as opposed to the historical approach of accepting …

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …