Law Commons^™

How Like A Winter? The Plight Of Absent Class Members Denied Adequate Representation, Susan P. Koniak

Faculty Scholarship

Class actions assume absent class members. ² Notices in class actions tell class members that they need not show up in the courthouse, although they may if they choose.³ Class members are told that class counsel and the named class representatives will look out for them, although if they choose to hire their own lawyer, she may appear on their behalf.⁴ They are also routinely told that once the decision in the class action becomes final they will be bound by it, losing any and all right to protest the resolution of their claims by the class action …

The Supreme Court's Labor And Employment Decisions: 2002-2003 Term, Maria O'Brien

Faculty Scholarship

This article summarizes U.S. Supreme Court cases from the October 2002 term that related directly or indirectly to labor or employment law or have implications for labor and employment practitioners. Of particular interest are the University of Michigan affirmative action cases' and the Texas criminal sodomy case. ² Although not nominally "labor and employment" cases, these cases will profoundly affect labor and employment issues. Lawrence v. Texas has already altered the lenses through which society views homosexuality and altered public discourse related to homosexuality and same-sex relationships. ³ The reasoning of the Court shows how far issues of sexuality have …

Archetypal Trials And The Management Of Dissent: Some Insights From Marketing Theory, Pnina Lahav

Faculty Scholarship

Recent marketing theory uses the Jungian concept of the archetype to design strategies for the improvement of product selling. Mark and Pearson propose that archetypes such as the ruler, the hero, the outlaw, and the sage are useful in promoting a product. This article suggests that the concept of archetypes as well as myths such as the Prometheus myth and the myth of the expulsion from Paradise, when combined with the insights offered by Mark and Pearson, may help in understanding the management of trials of dissent as well. The article presents seven motifs that recur in trials of dissent …

A Six-Three Rule: Reviving Consensus And Deference On The Supreme Court, Jed Handelsman Shugerman

Faculty Scholarship

Over the past three decades, the Supreme Court has struck down federal statutes by a bare majority with unprecedented frequency. This Article shows that five-four decisions regularly overturning acts of Congress are a relatively recent phenomenon, whereas earlier Courts generally exercised judicial review by supermajority voting.

One option is to establish the following rule: The Supreme Court may not declare an act of Congress unconstitutional without a two-thirds majority. The Supreme Court itself could establish this rule internally, just as it has created its nonmajority rules for granting certiorari and holds, or one Justice who would otherwise be the fifth …

Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman

Faculty Scholarship

On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.⁵ When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …

The Unhappy History Of Civil Rights Legislation, Fifty Years Later, Jack M. Beermann

Faculty Scholarship

Seldom, if ever, have the power and the purposes of legislation been rendered so impotent.... All that is left today are afew scattered remnants of a once grandiose scheme to nationalize the fundamental rights of the individual.

These words were written fifty years ago by Eugene Gressman, now William Rand Kenan, Jr. Professor Emeritus, University of North Carolina School of Law, as a description of what the courts, primarily the Supreme Court of the United States, had done with the civil rights legislation passed by Congress in the wake of the Civil War. Professor Gressman's article, The Unhappy History of …

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …

Comments On Rooker-Feldman Or Let State Law Be Our Guide, Jack M. Beermann

Faculty Scholarship

I feel privileged to have been asked to be a commentator on the three principal papers in this symposium. These are three excellent papers, and although there has been some valuable commentary on the Rooker-Feldman doctrine, there will be no need to go beyond these papers to gain a full appreciation of the doctrine, its applications, and its problems, which run as deep as the problems of any doctrine.

Municipal Responsibility For Constitutional Torts, Jack M. Beermann

Faculty Scholarship

The fundamental principle in the law of municipal liability under § 1983 is that municipalities may be held liable only for their own conduct, not for the conduct of municipal employees. Stated somewhat differently, municipalities may not be held vicariously liable for the conduct of municipal employees but rather can be held liable only when municipal policy is the moving force behind the violation. While this principle is simple to state, it has proven difficult to apply.

Lessons From The Past: Revenge Yesterday And Today Symposium, Tamar Frankel

Faculty Scholarship

Professor Seipp's Paper transports us to the Middle Ages to discover a society that views crime and tort quite differently from the way we view these categories today. Yet our discovery of that society offers a perspective about our own. In Professor Seipp's world the victim of a wrong had a choice: demand revenge by determining how the wrongdoer would be punished, or demand monetary compensation. These two entitlements were mutually exclusive. The victim could choose either one, but to some extent, especially in earlier times, the right of revenge was considered a higher right that the victim was expected …

Federal Evidentiary Hearings Under The New Habeas Corpus Statute, Larry Yackle

Faculty Scholarship

Constitutional claims invariably turn on the underlying historical facts. In order to adjudicate claims presented in habeas corpus petitions, accordingly, the federal courts must somehow ascertain the facts. In some instances, the factual record can be augmented via discovery or expansion of the record under the federal habeas corpus rules.' Otherwise, disputed factual issues typically must be determined on the basis of previous litigation in state court or in independent federal evidentiary hearings.

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva S. Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

"Presumptions And Burdens Of Proof As Tools For Legal Stability And Change, Tamar Frankel

Faculty Scholarship

Presumptions and burdens of proof are used, among other purposes, to maintain legal stability and at the same time effect change. By imposing the burden of proof on the party asserting a certain outcome, courts can calibrate burdens of proof and substantive rules until experience points to rule retention or amendment. As agents of change, presumptions and burdens of proof are far more flexible and less brittle than rules.¹

This Article tells the story of presumptions and burdens of proof in litigation between corporate shareholders and managements. This litigation is replete with volatile presumptions and innovative burdens of proof, …

When Courts Refuse To Frame The Law And Others Frame It To Their Will, Susan P. Koniak

Faculty Scholarship

In the aftermath of Kaye, Scholer, Fierman, Hays & Handler's settlement with the government,¹ two versions of the story have emerged. The most popular version features the government actors as villains-villains with new and lethal weapons at their disposal, willing to enforce law that has leapt full grown from their heads like Zeus' child, law of which the rest of the civilized world was unaware. The counterstory, less often told but not without adherents, casts the lawyers of Kaye, Scholer as the villains: unscrupulous and greedy lawyers ready to break any rule, defile any process, twist any truth on …

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.

Mengele's Birthmark: The Nuremberg Code In United States Courts, George J. Annas

Faculty Scholarship

Experimentation on human beings is so difficult to justify that the attempt is seldom even made. Usually its justification is simply assumed, and vague notions of progress or national emergency are suggested as sufficient rationales. The United States, a society dedicated to both progress and human rights, has been profoundly ambivalent about human experimentation. On the one hand, we have consistently argued in our ethical codes that the rights and welfare of research subjects must be protected; on the other hand, we have consistently used perceived emergencies, both national and medical, as an excuse to jettison individual rights and welfare …

The Great Writ In Action: Empirical Light On The Federal Habeas Corpus Debate, Larry Yackle

Faculty Scholarship

The national debate regarding federal habeas corpus for state prisoners is fueled in the main by ideology. To some, the authority of the federal courts to entertain constitutional challenges to state criminal convictions is the embodiment of all that was right about the Warren Court and the vision that Court offered of a meaningful system of American liberty, underwritten by independent federal tribunals willing and able to check the coercive power of government. By this account, the Bill of Rights is the protean source of safeguards for individual freedom - commanding generous, imaginative, and insightful elaboration by federal courts at …

Rent Appropriation And The Labor Law Doctrine Of Successorship, Keith N. Hylton

Faculty Scholarship

When there is a change of corporate control in a business enterprise a question arises as to whether the new employer should be bound by the predecessor's collective bargaining relationship with the union representing the predecessor's employees. This is known as the successorship problem in labor law.' Successorship doctrine is complex and controversial. Several commentators have attempted to reconcile Supreme Court decisions and to ascertain the assumptions underlying the Court's opinions in this area.2 This Article does not attempt to do this, although paradoxically, the arguments presented may lead to reconciliation of many of the Supreme Court's decisions relating to …

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.¹ In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. ² Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, ³ thus settling a controversial …

Choosing Judges The Democratic Way, Larry Yackle

Faculty Scholarship

A generation ago, the pressing question in constitutional law was the countermajoritarian difficulty.' Americans insisted their government was a democratic republic and took that to mean rule by a majority of elected representatives in various offices and bodies, federal and local. Yet courts whose members had not won election presumed to override the actions of executive and legislative officers who had. The conventional answer to this apparent paradox was the Constitution, which arguably owed its existence to the people directly. Judicial review was justified, accordingly, when court decisions were rooted firmly in the particular text, structure, or historical backdrop of …

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 …

Vanessa Redgrave V. Boston Symphony Orchestra, Inc.: A Breach Of Constitutional Dimension, Maria O'Brien

Faculty Scholarship

In Vanessa Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93 (1987), the Supreme Judicial Court (SJC) issued an important ruling on the parameters of the Commonwealth's relatively new Civil Rights Act (MCRA)' by answering two questions certified to it by the United States Court of Appeals for the First Circuit. The SJC held that MCRA is essentially the state equivalent of 42 U.S.C. §1983 without the federal "state action" requirement.' This article briefly examines the SJC's decision in Redgrave in light of Massachusetts precedent and the vast federal experience with §1983 actions (Section I) and then considers the …

The Intellectual Development Of The American Doctrine Of Judicial Review, Pnina Lahav

Faculty Scholarship

No abstract provided.

Pretrial Procedure Under The Massachusetts Rules Of Criminal Procedure, Eva S. Nilsen

Faculty Scholarship

The Massachusetts Rules of Criminal Procedure became effective on July 1, 1979. While many of their provisions helpfully codify previously existing practice and case law, the Rules have in some areas effected a major transformation of criminal procedure. This article examines the changes wrought by the Rules in the pretrial arena, with emphasis on those areas that remain somewhat unfamiliar to the practitioner or untested against constitutional challenge in the courts. While the Rules appear to have done an admirable job of simplifying and rationalizing the criminal trial process, their emphasis on mutuality and reciprocity have in some cases created …

The Tax Benefit Of Bliss, Alan L. Feld

Faculty Scholarship

In recent years the Supreme Court has limited its substantive decisions in federal income tax matters.^I For the most part, the handful of tax cases it has considered each year deal with collection, liens, or other issues peripheral to doctrinal development in the tax area.² The Court's recent decision in Diedrich v. Commissioner,³ however, dealt with a realization question involving net gifts; and its grant of certiorari consolidating the cases of Bliss Dairy, Inc. v. United States and Hillsboro National Bank v. Commissioner⁴ promises a continuing interest in substantive tax law. Bliss Dairy will enable the …

The Standards' Recommendations On Dispositions: A Panel Discussion Panel Discussion, Stanley Z. Fisher

Faculty Scholarship

ROFESSOR STANLEY FISHER, MODERATOR: Good evening. I'd like to welcome you all here. Of all of the volumes of the Juvenile Justice Standards Project, I suppose the most controversial are those dealing with the disposition stage. They have elicited a good deal of critical comment, even though they haven't yet been published, and many of the comments and criticisms have apparently been on the basis of speculation and rumor as to what the Standards actually say. We have with us tonight to discuss these Standards two persons who have a great deal of expertise in this field. The first, on …

The Disposition Process Under The Juveniles Justice Standards Project, Stanley Z. Fisher

Faculty Scholarship

The Juvenile Justice Standards Project volumes were publicly discussed for months prior to their publication. Unavoidably, much of the discussion was based upon rumor regarding their contents. In that context, critics charged that the proposed Standards would "destroy the nation's juvenile court system and replace it with a 'junior criminal system' "1 and claimed that the Standards substitute the philosophy of "just deserts" for the traditional rehabilitative goals of juvenile justice.' The news media described the Standards on disposition of delinquents as designed to "fit the penalty to the crime, no matter what the age of the perpetrator. '3 I …

Collateral Challenges To Criminal Convictions, Larry Yackle

Faculty Scholarship

The Kansas Defender Project is a clinical program sponsored by the University of Kansas School of Law. The Project provides student legal services to indigent prison inmates at the United States Penitentiary at Leavenworth and the Kansas State Penitentiary at Lansing, Kansas. Launched in 1965 through the efforts of Paul E. Wilson, Kane Professor of Law, the Project has since been a model for similar clinical undertakings at law schools across the country.

The Governor's Private Eyes, Tamar Frankel

Faculty Scholarship

In his inaugural speech on January 3, 1967, Florida Governor Claude Kirk declared a War on Crime. For this purpose he announced the creation of a unique War on Crime Program. Its activities were to include a Citizen's Awareness Program, but its main function was directed to the investigation of crimes. As the Program's director, the Governor appointed Mr. George Wackenhut, the president of the Wackenhut Corporation, a large private investigation firm. Mr. Wackenhut agreed to provide his services for one dollar a year; his corporation was simultaneously retained to supply the Program with the necessary administrative facilities and investigative …