Law Commons^™

Judicial Supremacy And The Settlement Function, Robert F. Nagel

Publications

No abstract provided.

Authorizing Interpretation, Pierre Schlag

Publications

No abstract provided.

Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Sex Selection Abortion And The Boomerang Effect Of A Woman's Right To Choose: A Paradox Of The Skeptics, Lynne Marie Kohm

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Risk-Utility Balancing In Design Defect Cases, David G. Owen

University of Michigan Journal of Law Reform

Design defectiveness is generally defined in terms of a risk-utility balance, the form of liability test adopted by the Restatement (Third) of Torts: Products Liability. However, confusion abounds in how courts formulate such balancing tests. A national survey of recent appellate court decisions reveals that courts generally define the balance in terms of the product's risks and utility, a formulation which appears to call for weighing the product's global costs against the product's global benefits. So defined, the design defect test is incorrect. What appellate courts mean for juries to decide, and what juries ordinarily do in fact decide, …

The Judge's Dilemma: Duty Or Conscience?, Robert W. Sweet

Cardozo Law Review

No abstract provided.

The Second Circuit "Estopped": There Is No Promissory Estoppel In New York, Arthur B. Schwartz

Cardozo Law Review

No abstract provided.

Truth?, Bruce A. Markell

Indiana Law Journal

No abstract provided.

The Board Of Directors And Internal Control, Melvin A. Eisenberg

Cardozo Law Review

No abstract provided.

An Interdisciplinary Approach To Family Law Jurisprudence: Application Of An Ecological And Therapeutic Perspective, Barbara A. Babb

All Faculty Scholarship

Traditionally, the legal system has attempted to fashion morality in determining family legal issues rather than to devise legal remedies that accommodate how families live. This approach must change, and a new approach based on legal realism that effectuates the well-being of families and children must be developed. This article proposes an interdisciplinary approach based on an ecological and therapeutic jurisprudential paradigm to resolve family legal proceedings. An ecological approach, emanating from the ecology of human development social science paradigm, is one in which family law decision-makers consider factors beyond their conceptions of the family. This approach urges decision-makers to …

Burden Of Proof And Estimation Of Drug Quantities Under The Federal Sentencing Guidelines, Johan Bring, Colin Aitken

Cardozo Law Review

According to the United States Federal Sentencing Guidelines (the "FSG"), a person convicted for handling drugs should not only be sentenced for the quantity seized but also for the total quantity handled as "part of the same course of conduct or common scheme or plan as the offense of conviction." Hence, judges, probation officers, and lawyers often need to estimate the total quantity of drugs handled. The evidence on which to base such an estimation, however, differs greatly in both characteristic and quality. The types of evidence could include: the quantity of drugs seized, information concerning quantities handled …

Identifying Law's Unconscious: Disciplinary And Rhetorical Contexts, David S. Caudill

Washington and Lee Law Review

No abstract provided.

Lacan And The Subject Of Law: Sexuation And Discourse In The Mapping Of Subject Positions That Give The Ur-Form Of Law, Ellie Ragland

Washington and Lee Law Review

No abstract provided.

Maladies Of The Legal Soul: Psychoanalysis And Interpretation In Law, Peter Goodrich

Washington and Lee Law Review

No abstract provided.

Does Law Need An Analyst? Prospects For Lacanian Psychoanalysis In Law, Richard E. Redding

Washington and Lee Law Review

No abstract provided.

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

Scholarly Works

This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. The answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …

Feminist Jurisprudence: Justice And Care, Sherrine M. Walker, Christopher D. Wall

Brigham Young University Journal of Public Law

No abstract provided.

Book Review: Postmodern Legal Movements: Law And Jurisprudence At Century's End By Gary Minda, Chris Sagers

Law Faculty Articles and Essays

Postmodem Legal Movements does two things. First, the bulk of the book provides an overview of American jurisprudence, from Christopher Columbus Langdell to the present. This overview is necessary because, in order to understand "postmodem forms of jurisprudence, we must first explore what came before postmodernism, that is, modernism" (p. 5). Second, the relatively short latter portion of the book presents an argument about the current state of American legal scholarship and its future. Minda's picture of contemporary legal thought is that of a paradigm shift in the making.

Postmodern Legal Movements will prove useful to those in search of …

The Hazards Of Tinkering With The Common Law Of Future Interests: The California Experience, Laura E. Cunningham

Articles

No abstract provided.

Trading In Controversy, Neil Duxbury

Buffalo Law Review

No abstract provided.

Incommensurability And Alterity In Contemporary Jurisprudence, Nick Smith

Buffalo Law Review

No abstract provided.

Cries And Whispers: Environmental Hazards, Model Rule 1.6, And The Attorney's Conflicting Duties To Clients And Others, Irma S. Russell

Faculty Works

This article examines the ethical tensions lawyers face when client confidentiality conflicts with the potential for environmental harm. This article focuses on Model Rule 1.6 of the Model Rules of Professional Conduct, arguing that its categorical approach to confidentiality often compels silence even when public safety is at stake. By exploring the role of attorneys as both client advocates and officers of the court, the article critiques the profession’s prioritization of the “attorney as champion” model. Using the hypothetical of a domestic environmental disaster akin to Bhopal, the article highlights the inadequacy of current ethical rules to address widespread …

Family Law Of The Two Chinas: A Comparative Look At The Rights Of Married Women In The People's Republic Of China And The Republic Of China, Janice A. Lee

Cardozo Journal of International and Comparative Law

The note examines the rights of married women in the People's Republic of China (PRC) and Taiwan, highlighting how traditional Confucian values continue to influence family law and practice despite legal reforms aimed at promoting gender equality. It argues that while both countries have enacted progressive laws, societal attitudes and enforcement mechanisms often undermine these legal advancements, perpetuating women's subordinate status.

Rational And Irrational Proof Revisited, Mirjan Damaska

Cardozo Journal of International and Comparative Law

It is interesting to examine fact-finding practices in culturally distant societies. These practices often seem thoroughly permeated by unreason, or else seriously defective in terms of the demands of rational inquiry. But if we look at them more carefully, placing them in their native cultural milieu, it usually emerges that they are not nearly as unreasonable as superficial inspection suggests. Our readiness to see them as tainted by unreason and radically different from our own, springs in large part from the failure to appreciate the degree to which the rationality of proof is culturally determined.' But as soon as the …

Finding The Truth In An American Criminal Trial: Some Observations, Frank J. Macchiarola

Cardozo Journal of International and Comparative Law

The article critiques the American adversarial criminal trial system, arguing that its focus on procedure and individual rights often hinders the pursuit of truth. While the system is deeply rooted in American cultural values, such as distrust of government and a commitment to individual liberties, its emphasis on adversarial contest rather than truth-seeking leads to inefficiencies and public dissatisfaction. The author highlights the tension between the system's theoretical commitment to justice and its practical limitations, particularly as illustrated by high-profile cases like the O.J. Simpson trial.

The American Adversarial System In Criminal Cases: Between Ideology And Reality, Johannes F. Nijboer

Cardozo Journal of International and Comparative Law

The article critically examines the adversarial system in American criminal cases, contrasting it with the inquisitorial system prevalent in many European countries. It argues that while the adversarial system remains a defining feature of U.S. criminal procedure, the inquisitorial system, as a historical concept, no longer exists in its traditional form. The analysis emphasizes the need for nuanced comparative legal scholarship to avoid oversimplification and highlights the cultural and historical contexts shaping these procedural systems.

Formal Neutrality In The Warren And Rehnquist Courts: Illusions Of Similarity, Rebecca L. Brown

Vanderbilt Law Review

I read recently that if one compares the genetic structure of humans to that of dogs, one finds that ninety-six percent of the DNA in the two species is identical. That is a lot of common ground. Yet it may not be enough to draw meaningful conclusions about the sameness of the two creatures. Without suggesting that either of the two Courts discussed in her Article is a "dog," I do think it is fair to say that Professor Sherry has perhaps underestimated the relative importance of the divergent four percent.

Professor Sherry argues that in the defining areas of …

General Goods: A Case Involving Security Interests In Inventory And Accounts In The United States, Canada, And Mexico, John E. Rogers, Carlos De La Garza-Santos

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Judge Friendly And The Law Of Securities Regulation: The Creation Of A Judicial Reputation, Margaret V. Sachs

Scholarly Works

Few judges are more revered than the late Henry J. Friendly, a member of the United States Court of Appeals for the Second Circuit from 1959 to 1986. Leading jurists and scholars have described him as "one of our wisest judges," "a legend in his own time," "the most remarkable legal mind of his generation," "the pre-eminent appellate judge of his era," and "the most distinguished judge in this country during his years on the bench."

Are great judicial reputations-like great literary and scientific reputations- also shaped by contingencies? Or does the legal profession for some reason stand apart? This …

Some Problems Involving Enforcement Of Contracts And Secured Financing: Panel Discussion Part One, Michael W. Gordon, Matthew H. Adler, Hope Camp, David Epstein, Cesar Garcia Mendez, Michael Owen

United States - Mexico Law Journal (1993-2005)

No abstract provided.