Digital Commons Network^™

Pragmatism Regained, Christopher Kutz

Michigan Law Review

Jules Coleman's The Practice of Principle serves as a focal point for current, newly intensified debates in legal theory, and provides some of the deepest, most sustained reflections on methodology that legal theory has seen. Coleman is one of the leading legal philosophers in the Anglo-American world, and his writings on tort theory, contract theory, the normative foundations of law and economics, social choice theory, and analytical jurisprudence have been the point of departure for much of the most interesting activity in the field for the last three decades. Indeed, the origin of this book lies in Oxford University's invitation …

What's Wrong With Our Talk About Race? On History, Particularity, And Affirmative Action, James Boyd White

Michigan Law Review

One of the striking and original achievements of the Michigan Law Review in its first century was the publication in 1989 of a Symposium entitled Legal Storytelling. Organized by the remarkable editor-in-chief, Kevin Kennedy - who tragically died not long after his graduation - the Symposium not only brought an important topic to the forefront of legal thinking, it did so in an extraordinarily interesting way. For this was not a mere collection of papers; the authors met in small editorial groups to discuss their work in detail, and as a result the whole project has a remarkable coherence and …

Sprawl, Growth Boundaries And The Rehnquist Court, Michael Lewyn

Utah Law Review

UGBs are probably constitutional under Supreme Court Takings Clause precedent for two reasons. First, a UGB will rarely, if ever, cause a complete deprivation of economically beneficial use, and is thus unlikely to be a compensable "total taking" under Lucas and Palazzolo. Second, UGBs will generally not be compensable "partial takings" under the Penn Central balancing test, because they are typically justified by a legitimate state purpose (that of preventing the urbanization of rural areas) and will, if prudently drafted, rarely interfere with landowners' investment-backed expectations.

The Rehnquist Court And The End Of Constitutional Stare Decisis: Casey, Dickerson And The Consequences Of Pragmatic Adjudication, William S. Consovoy

Utah Law Review

In light of the Rehnquist Court's misuse of stare decisis, and the Court's repeated admonitions that stare decisis is a doctrine of policy, not a command, this Article suggests the abrogation of stare decisis from the Supreme Court's analysis of constitutional issues. Policies are designed to foster beneficial outcomes. When stare decisis is viewed in the context of relevant case law, particularly Casey and Dickerson, it is apparent that this haphazard and consequentialist application of stare decisis is not a benefit, but a detriment. Although abandoning stare decisis has consequences, those consequences are administrative and have no impact on the …

Motions For Summary Judgment When Employers Offer Multiple Justifications For Adverse Employment Actions: Why The Exceptions Should Swallow The Rule, Lawrence D. Rosenthal

Utah Law Review

When employers decide that they will terminate or otherwise adversely affect an employee's employment, they are often forced to give some justification for their decisions. Because employers will face legal liability if they are found to have acted in a discriminatory manner, the reasons given to the former employee are of extreme importance. Although the Supreme Court has established numerous rules for analyzing employment discrimination cases, the Court has not yet definitively answered the question of whether a plaintiff can defeat a motion for summary judgment when only presenting evidence that some, but not all, of the proffered reasons for …

Half A Loaf Is Predominant And Superior To None: Class Certification Of Particular Issues Under Rule 23(C)(4)(A), Jon Romberg

Utah Law Review

Mass-produced objects and ideas permeate our lives, as more and more becomes reproducible on a grander scale with decreasing marginal cost.' The world is suffused with a common stream of products and practices that issue from a single corporate or governmental source. Downstream, the wave washes over large groups of people, with a pattern of similar but not identical consequences left in its wake.

Duties Under The Utah Revised Limited Liability Company Act: Analysis Of A Statutory Conflict, Stan Johnson

Utah Law Review

With the enactment in 2001 of the Utah Revised Limited Liability Company Act (URLLCA), Utah businesspeople electing to form LLC's are faced with a difficult conundrum regarding the duties they owe to the company and to each other, and whether they may opt out of or reduce those duties. Although the URLLCA provides statutory duties for members and managers, two of its provisions clearly allow members to opt out of those duties and reduce them according to the terms of the LLC operating agreement.' On the other hand, another provision very specifically states that members may not reduce their statutory …

The Children Must [And The Timorous May] Stay At Home: Hawkins V. Peart, Brian A. Dominic

Utah Law Review

Recreational opportunities are a valuable source of income, tourism, and excitement in Utah. However, those who provide these activities often have difficulty securing reasonable and affordable liability insurance, and thus often require preactivity waivers of liability from their customers, both adults and children. This Note examines the Utah Supreme Court's recent decision in Hawkins v. Peart, in which the court invalidated a parent's preactivity release of liability on behalf of her child and an indemnity provision in a contract with a trail riding company. Parts II through V of this Note review the court's decision and analysis. Part VI analyzes …

That Was Then, But That's What Counts: Freezing The Law Of R.S. 2477, Robert H. Hughes

Utah Law Review

During the last decade, perhaps no public lands issue has been more controversial than the debate over wilderness designations on Bureau of Land Management (BLM) lands. By the terms of the Federal Lands Policy and Management Act (FLPMA), wilderness areas can only be created on BLM lands if those lands are "roadless." As a result, much of the fight over wilderness designations has focused on roads. Wilderness advocates argue for a strict definition of roads-one that would not include old wagon trails, and would thereby open up more land for potential wilderness designation.' Wilderness opponents, on the other hand-often states …

The King's One Too Many Eyes: Language, Thought, And Comparative Law, Igor Stramignoni

Utah Law Review

Martin Heidegger's meditating thinking can be hard to access-though by now a possible inroad into that thinking will have begun to emerge and, with it, some intimation of a possible, radically "other" way of thinking comparative law. On the other hand, there is also little doubt that parts of Heidegger's thinking are best left to obscurity. Nevertheless, Heidegger's work has been one generous if underplayed source of inspiration for many late twentieth century thinkers such as, for example, Michel Foucault, Jacques Derrida, Gilles Deleuze, Niklas Luhmann and the younger Jirgen Habermas. Thus, comparative lawyers, too, might find it fruitful to …

Security Interests, Repossessed Collateral, And Turnover Of Property To The Bankruptcy Estate, Stephen J. Ware

Utah Law Review

There are two plausible readings of Bankruptcy Code § 542(a). Whiting Pools read § 542(a) to reflect the colloquial understanding of ""property"" as thing. Courts applying Whiting Pools' reasoning to security interests hold that a secured creditor who has repossessed goods, but not yet sold them at foreclosure, must deliver (turn over) possession of the goods to a debtor who files for bankruptcy or to the bankruptcy trustee. By contrast, Professor Plank argues that § 542(a) uses the specialist's understanding of property. This reading of § 542(a) compels the conclusion that a creditor who, at the time the debtor files …

The Pitfalls Of The Environmental Right-To-Know, Alexander Volokh

Utah Law Review

Would you want your family to live near a plant containing acetone, acetaldehyde, methylbutyrate, ethylcaproate, hexylacetate, methanol, acrolein, and croton aldehyde? Perhaps not. Responding to Americans' fears of exposure to scary-sounding and possibly dangerous chemicals, and prompted by a few high-profile industrial accidents, Congress in 1986 adopted a far-reaching system of chemical-release reporting dubbed the Toxics Release Inventory (TRI).' Some states have adopted environmental information programs of their own.

Speech Or Opinion? Two Objects Of First Amendment Immunity, Jeremy J. Ofseyer

Utah Law Review

There is a widespread sense in scholarly circles that First Amendment jurisprudence is riddled with conflict and confusion. Many observers lament that the United States Supreme Court's doctrinal framework for adjudicating free speech cases is deeply incoherent. The eminent First Amendment scholar Thomas Emerson wrote pessimistically in 1966: "No one concerned with freedom of expression in the United States today can fail to be alarmed by the unsatisfactory state of First Amendment doctrine.... [N]o really adequate or comprehensive theory of the First Amendment has been enunciated, much less agreed upon."

Constructing A Public Community College Presidency: A Retrospective Study, Annabel Brooks

UNF Graduate Theses and Dissertations

This retrospective, qualitative case study examined the complexities of leadership in a community college setting under a single, long-term president. Six critical events were identified by 16 key informants as a basis for reflection on their views of the 23-year presidency of Dr. William Seeker at Florida Keys Community College.

The researcher found a highly participatory leadership model and a college that functions in a less hierarchical manner than is traditionally encountered in community colleges. The study further revealed that the president of Florida Keys Community College expanded the role of president by giving priority to the construction of a …

Sight, Sound, And Stereotype: The War On Terrorism And Its Consequences For Latinas/Os, Steven W. Bender

Faculty Articles

In the days and weeks following the September 11 terrorist attacks, reports emerged of hate crimes, discrimination, and profiling directed at Arab Americans, Arabs, and Muslims in the United States. Although aware that the primary targets of the public and private response against terrorism were those of Arab or Muslim appearance, I realized that the backlash within the United States also affected Latinas/os and certain other subordinated groups. This Article grew out of my concern that while Latinas/os at first might be deemed "safe" by the American public, their negative societal construction made their targeting inevitable as the fervent, amorphous …

Clarence Thomas The First Ten Years: Looking For Consistency, Mark Niles

Faculty Articles

Dean Niles describes his observation and impression of the first ten years of Clarence Thomas’ judgeship. While Dean Niles admits that his own views are more liberal than Clarence Thomas’, he was not initially concerned about those differences. But as the days, weeks and years passed, notwithstanding Dean Niles’ early stoicism, serious concerns about the candidate, and later the Justice, began to arise. These concerns were not based on Justice Thomas' beliefs or ideology, but on a growing set of inconsistencies that began to arise between some of his beliefs and actions. With all due respect to a man who …

Seekin’ The Cause: Social Justice Movements And Latcrit Community, Steven W. Bender, Keith Aoki

Faculty Articles

LatCrit VII, held May 2-5, 2002, in Portland, Oregon, adopted the theme Coalitional Theory and Praxis: Social Justice Movements and LatCrit Community. The conference's opening roundtable set an activist tone by centering within LatCrit discourse several progressive movements for sociopolitical transformation existing in academia and beyond. This article embraces the conference theme as an opportunity to examine and compare the LatCrit scholarly movement with those beyond academia, particularly current and past sociopolitical movements originating in Latina/o communities.

On The Hijacking Of Airplanes (And Agencies): The Faa, ‘Agency Capture,’ And Airline Security, Mark Niles

Faculty Articles

This article will analyze the allegation that the FAA has been "captured" by airline industry interests. It begins with a summary of agency capture theory, and a brief reference to some of its more important complexities and nuances.

Lesbigay Identity As Commodity, David Skover, Kellye Testy

Faculty Articles

In America's popular culture, LesBiGay identities abound. In its political culture, however, they emerge more tentatively. The commercial and entertainment industries increasingly commodify and celebrate LesBiGay identities. The courts and legislatures generally discount and condemn them. Thus, there is a deep dissonance between the validation of LesBiGay identities in the economic marketplace of items and ideas, and their devaluation in the legal arena of rights and remedies. This piece explores the deep dissonance that exists today between the validation of American LesBiGays in the commercial marketplace and their devaluation in political and legal arenas, and questions the failure of legal …

Institutionalizing Inequality: The Wto Agreement On Agriculture, Food Security, And Developing Countries, Carmen G. Gonzalez

Faculty Articles

The article examines the food security implications of the WTO Agreement on Agriculture. It places the Agreement in historical context, examines its key provisions, and argues that the Agreement systematically favors industrialized country agricultural producers at the expense of farmers in developing countries. The Agreement enables industrialized countries to continue to subsidize agricultural production and to protect domestic producers from foreign competition while requiring market openness in developing countries. The article evaluates the effect of this imbalance on food security in developing countries, and proposes reforms to provide developing countries with the tools to promote access by all people at …

Truth As Right And Remedy In International Human Rights Experience, Thomas Antkowiak

Faculty Articles

Early this year, the Inter-American Court of Human Rights in San Jose, Costa Rica, was faced yet again with a seemingly basic question: Does an individual have a legal right to know the truth about the circumstances surrounding the serious human rights violations a loved one has suffered? One might expect to encounter such a privilege in our victim centered system of international human rights protection-especially within the progressive jurisprudence of the Inter-American Court. Yet, it is simply not to be found as a substantive, explicit right. This essay seeks to explore the origins, scope, and key possibilities of an …

The Legitimacy Of Amnesties Under International Law And General Principles Of Anglo-American Law, Ronald Slye

Faculty Articles

This article discusses what makes an amnesty legitimate. The author does this by evaluating amnesties in light of international law critiques of amnesties for human rights violations and from principles of both Anglo-American and international law. First, the author breaks the international law critiques into three schools: the obligation to prosecute, the fundamental rights of victims, and the social stability. From these schools, the author derives principles to evaluate the legitimacy of amnesties. After establishing that the doctrine of non bis in idem is not a barrier to evaluating the legitimacy of foreign amnesties, the author selects areas of law …

Improving Legal Writing Courses: Perspectives From The Bar And Bench, Constance Krontz, Susan Mcclellan

Faculty Articles

To fine-tune legal writing courses to better prepare law students to enter legal practice, Professors Constance Krontz and Susan McClellan surveyed judges and practicing attorneys who supervise the work of first-year associates or judicial law clerks. They selected attorneys from a variety of practices in Washington State, including offices of public defenders and state prosecutors, the Attorney General's office, and private firms of various sizes. They sought information about the performance of all first-year clerks and associates, without reference to where they obtained their law degrees. Knowledge of the bench and bar's perception of the oral and written performance of …

When Interests Diverge, Robert S. Chang, Peter Kwan

Faculty Articles

In this review of Mary Dudziak's important book, Cold War Civil Rights: Race and the Image of American Democracy (Princeton Univ. Press 2000), Professors Chang and Kwan find the book to provide compelling historical narratives about the intersection of the Cold War and civil rights struggles. Dudziak demonstrates through an amazing array of historical evidence a story that runs counter to the standard narrative of racial sin followed by racial redemption, which helps us to reassess who we are and to be cognizant of the work that remains.

Undeserving Addicts: Ssi/Ssd And The Penalties Of Poverty, Dean Spade

Faculty Articles

Since the late 1980's, American media and politicians have produced and participated in a moral panic around the issue of illegal drug use. This panic has generated vivid pictures in the American imagination of drug users as a morally depraved, irresponsible, and willfully criminal underclass. Such images have fueled the "war on drugs," a multi-faceted rhetoric and policy approach to drug use that focuses on incarceration, interdiction, and other criminal justice strategies. The punitive approach of the war on drugs has bled into poverty and disability policy with alarming persistence. The trend has influenced numerous poverty alleviation and disability programs …

Transboundary Dispute Resolution As A Process And Access To Justice For Private Litigants: Commentaries On Cesare Romano's "The Peaceful Settlement Of International Disputes: A Pragmatic Approach", Henry Mcgee, Timothy W. Woolsey

Faculty Articles

Professor McGee reviews Cesare Romano's The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach. Cesare R. P. Romano, of the New York University Center for Global Cooperation, argues for and advocates arbitrative processes as the most tenable means of solving transboundary conflicts over the impacts of environmental pollution as well as access to natural resources.

Closing Essay: Developing A Collective Memory To Imagine A Better Future, Robert S. Chang

Faculty Articles

This closing essay to a symposium inaugurating UCLA Law School's Program in Critical Race Studies suggests that the racialized Asian American body can operate as a site for collective memory and thus serve as reminders of past mistakes in order to restrain current and future abuses of power. One of the lessons to be learned is from World War II when extreme subordination of one Asian American group, Japanese Americans, was accompanied by the elimination of certain barriers for another Asian American group, Chinese Americans. A similar dynamic may be happening now following September 11. With the increase in legal …

Article Ii And The Florida Election Case: A Public Choice Perspective, Michael L. Wells, Jeffry M. Netter

Scholarly Works

This Article puts aside the equal protection rationale on which the majority relied in Bush v. Gore. We share Richard Epstein's view that "[a]ny equal protection challenge to the Florida recount procedure quickly runs into insurmountable difficulties." In our view there is a more compelling argument to support the ruling. It begins with Chief Justice Rehnquist's concurring opinion, which focused on Article II, Section 1, Clause 2, of the United States Constitution. Clause 2 provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct" electors for President and Vice President. The critical issue in Bush …

Charities And The Constitution: Evaluating The Role Of Constitutional Principles In Determining The Scope Of Tax Law's Public Policy Limitation For Charities, David A. Brennen

Scholarly Works

This Article expands the discussion of whether tax-exempt charities, for constitutional law purposes, should be treated as government actors, as private actors or as something in between. While government actors are subject to constitutional law restrictions concerning discrimination and free speech, private non-government actors are not generally subject to these same restrictions. Although tax-exempt charities are often thought of as sovereigns and, thus, government-like, the fact remains that charities are private entities created to serve public purposes. As private entities, charities - like all other private entities - are not necessarily bound by constitutional law principles. Still, the many “public” …

A Correct Analysis Of The Tax Treatment Of Contingent Attorney's Fee Arrangements: Enough With The Fruits And The Trees, Gregg D. Polsky

Scholarly Works

The tax treatment of contingent attorney's fee arrangements has been the subject of much recent debate and litigation. Some courts and commentators conclude that a plaintiff must include the entire settlement amount, including attorney's fees, in her gross income, while other courts and commentators conclude that a plaintiff must include only her recovery net of attorney's fees. Because of the alternative minimum tax, the resolution of this issue may have a significant effect on the plaintiff's tax liability. In analyzing the issue, courts and commentators have focused on the assignment of income doctrine by inquiring whether, upon execution of a …