Law Commons^™

Justice Brennan, Peter L. Strauss

Faculty Scholarship

The editors of the St. John's Law Review have given me the boon of a few pages in which to celebrate Justice Brennan with you. The problem for a former law clerk, for anyone who has known this man, is to know where to begin, and how to keep the appreciation within manageable compass.

Legal Process And Judges In The Real World, Peter L. Strauss

Faculty Scholarship

It is gratifying, reading through a paper and noting here and there points that you might like to make, to find that by the end the author has anticipated them and made them well. This paper sneaks up on you. If at the outset it seems to be accepting that Justice Scalia has a jurisprudence of statutory interpretation that coheres and restrains, by the end it has shown the self-contradictions and decidedly political and institutional stakes in the textualist position the Justice appears to have been carving out for himself.

I am not going to address Professor Zeppos's account of …

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

Faculty Scholarship

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

A Tribute To Peter S. Popovich, James F. Hogg

Faculty Scholarship

A tribute to Peter S. Popovich, Chief Justice of the Minnesota Supreme Court 1989-1990 and William Mitchell College of Law alumni.

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 …

Justice Harlan's Conservatism And Altenative Possibilities, Kent Greenawalt

Faculty Scholarship

Bruce Ackerman and Charles Fried's rich essays address the subject of Justice Harlan as a conservative. One who comes to this topic has in mind questions like: Was Justice Harlan a conservative? If so, what kind of a conservative was he? How did his judicial actions exemplify a conservative approach? Most importantly, is his conservatism an appealing model for modern judicial practice?

Professors Ackerman and Fried's slices on this topic reflect their own casts of mind and philosophies of judging. Fried looks at a broad range of Justice Harlan's opinions and sets them against particular conservative qualities that Fried commends. …

The Perceived Authority Of Law In Judging Constitutional Cases, Kent Greenawalt

Faculty Scholarship

The purpose of this conference is a dialogue between scholars and judges about judging. Because judges have many opportunities to read what scholars think, and scholars don't very often have this kind of chance to hear judges reflect on their own experiences and perspectives, I expect the main benefit to go to us scholars. However, for many questions of jurisprudential interest, figuring out what relevance different judicial experiences might have is complicated, and extensive discussion may be necessary to learn what really matters.

I shall focus on a question that has lain at. the center of jurisprudential discussion in the …

Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski

Faculty Scholarship

A century ago Oliver Wendell Holmes, Jr., examined the history of negligence in search of a general theory of tort. He concluded that from the earliest times in England, the basis of tort liability was fault, or the failure to exercise due care. Liability for an injury to another arose whenever the defendant failed "to use such care as a prudent man would use under the circumstances.” A decade ago Morton J. Horwitz reexamined the history of negligence for the same purpose and concluded that negligence was not originally understood as carelessness or fault. Rather, negligence meant "neglect or failure …

The Hushed Case Against A Supreme Court Appointment: Judge Parker's "New South" Constitutional Jurisprudence, 1925-1933, Peter G. Fish

Faculty Scholarship

No abstract provided.

A Critical Approach To Section 1983 With Special Attention To Sources Of Law, Jack M. Beermann

Faculty Scholarship

The Civil Rights Act of 1871¹ ("§ 1983") establishes a tort-like remedy for persons deprived of federally protected rights "under color of law."'² While the statute's broad language provides a remedy for violations of federal constitutional and statutory rights, the statute itself provides little or no guidance regarding important subjects such as the measure of damages, the availability of punitive damages, the requirements for equitable relief, the statute of limitations, survival of claims, proper parties, and immunities from suit.³...

...The first part of this article examines the narrowly "legal" analysis of § 1983 in the cases …

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 …

The Mandatory/Enabling Balance In Corporate Law: An Essay On The Judicial Role, John C. Coffee Jr.

Faculty Scholarship

A half-filled glass of water can be described as either half full or half empty. The structure of American corporate law – partly enabling, partly mandatory in character – can be viewed in much the same way. Some commentators see American corporate law as primarily composed of mandatory rules that the shareholders themselves cannot waive or modify, In their view, this mandatory component compensates both for the absence of true bargaining among the parties and for the inevitable divergence of interests between the principals (the shareholders) and their agents (the managers and directors). Conversely, other commentators, to whom this Article …

Foreword Report: Foreword, John D. Feerick, Cyrus Vance

Faculty Scholarship

The last few years have been particularly bad for government integrity in New York. Since 1985, New York City has been rocked by a series of highly publicized scandals, arguably the worst since the days of Tammany Hall. One borough president was convicted of felonies; another committed suicide while under investigation; a congressman was recently convicted of bribery and extortion; former party chairmen in two boroughs were convicted of serious crimes; and a number of agency heads, judges, and lesser officials either have been convicted or forced to resign under a cloud of suspicion. And the City does not have …

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 …

Judges, Lawyers And The Penalty Of Death, Michael E. Tigar

Faculty Scholarship

No abstract provided.

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 …

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.

Original Understanding And The Constitution, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Judging Judges: How We Choose Our Federal And State Judges, Joseph R. Grodin, Frank K. Richardson

Faculty Scholarship

No abstract provided.

Developing A Consensus Of Constraint: A Judge's Perspective On Judicial Retention Elections, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

An Astonishing Political Innovation: The Origins Of Judicial Review, Barbara Aronstein Black

Faculty Scholarship

It is a very great honor to be here today participating in the Third Circuit Judicial Conference and in the celebration of our two hundred years of government under the remarkable document that we call the Constitution of the United States. Philadelphia is indeed today the center of the universe and I am delighted to be here.

In addressing the topic assigned to me, "The Origins of Judicial Review," I will take my cue, in fact my text, from Judge Pollak, who, in a letter to me, suggested that I "draw in broad strokes the legal historical landscape in which …

Judicial Elections: The California Experience, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Self-Love And The Judicial Power To Appoint A Special Prosecutor Symposium On Special Prosecutions And The Role Of The Independent Counsel, James A. Cohen

Faculty Scholarship

Judicial appointment of private attorneys as special prosecutors has occurred and is permitted to occur in a variety of contexts other than when the executive branch is faced with a potential or actual conflict of interest. Until recently, the Second Circuit Court of Appeals and, of course, district courts within the Second Circuit, have interpreted Rule 42(b) of the Federal Rules of Criminal Procedure to permit judicial appointment of a private attorney to prosecute conduct allegedly violative of a court order as criminal contempt. Courts have been most active in appointing private attorneys as special prosecutors in cases involving counterfeit …

The Inapplicability Of Market Theory To Adoptions, Tamar Frankel

Faculty Scholarship

Judge Posner addresses an important issue. More than 130,000 couples in this country want to adopt children, and plenty are available. But most couples want healthy, white infants, and those children are in short supply. To get the child of their choice, these couples are forced to pay large sums of money to intermediaries. On the other hand, many unwed, teenage women face unwanted pregnancies. Many of them opt for abortion, which is relatively inexpensive, or for carrying to term and raising the children themselves, which is governmentally subsidized. But few of these women choose to have the child and …

Apartheid And The South African Judiciary, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Comment On Professor Van Alstyne's Paper, Henry P. Monaghan

Faculty Scholarship

My major difficulty with Professor Van Alstyne's paper is its incomplete character. In the end, he makes only two points: first, judges are authorized to apply "this Constitution," not to do justice; and second, judges should not lie about what they are doing. The danger is that after a while the first point sounds somewhat empty, while the actual content of the second point seems entirely parasitic on the first.

Revolutionary Constitutionalism In The Era Of The Civil War And Reconstruction , Robert J. Kaczorowski

Faculty Scholarship

The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866 remain among the most controversial issues in American constitutional law. Professor Kaczorowski contends that the issues have generated more controversy than they warrant, in part because scholars analyzing the legislative history of the amendment and statute have approached their task with preconceptions reflecting twentieth century legal concerns. He argues that the most important question for the framers was whether national or state governments possessed primary authority to determine and secure the status and rights of American citizens. Relying on records of the congressional debates as …

Justice William J. Brennan, Jr.: A Justice For All Seasons, Joel Gora

Faculty Scholarship

No abstract provided.

Crises? What Crisis?, Jack M. Beermann

Faculty Scholarship

Bureaucracy is a favorite target for criticism from the left and the right. Bureaucratization of an organization is claimed to cause excessive reliance upon rigid rules or the absence of rules altogether.' Few people want to be part of a large bureaucracy and fewer still want to depend on a bureaucracy for important benefits or policymaking. In recent years, the business of the federal judiciary has increased dramatically. Congress has attempted to meet the rising caseload by increasing the number of federal judges and assistants. As the federal court system becomes more and more like administrative bureaucracies, the question has …

The Supreme Court Rules For The Reporting Of Opinions: A Critique, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.