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Full-Text Articles in Law

Authority And Autonomy: The State, The Individual And The Family, M. David Gelfand Nov 1978

Authority And Autonomy: The State, The Individual And The Family, M. David Gelfand

University of Miami Law Review

This commentary focuses primarily upon the views expressed by Justice Rehnquist in his de Hirsch Meyer lecture. The author argues that a corollary to Justice Rehnquist's view that the judiciary should defer to the authority of private institutions over the individual, to protect those institutions, would be to adopt a judicial attitude of supporting private institutions against legislative interference. An examination of Justice Rehnquist's judicial opinions in the area of constitutional family law reveals exactly the opposite position. The author concludes that Justice Rehnquist's position of judicial deference to legislative decisions over the family may lead to destruction of the …

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The Judging Class, Kenneth M. Casebeer Nov 1978

The Judging Class, Kenneth M. Casebeer

University of Miami Law Review

The author traces the common thread running through the analysis of judicial review by the symposium speakers. He posits that while all three speakers support equally activist positions, their allegiance to divergent values and political theories results in their opposed statements on the activist debate. He compares the dialogue in this symposium to that of the Justices in the 1940's, which discourse explicitly was grounded in a struggle over values. The author concludes that courts must structure the form of their opinions in a manner which clearly demonstrates the relationship between the chosen social values and the resulting decision.

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The Adversary Society: Keynote Address Of The Third Annual Baron De Hirsch Meyer Lecture Series, William H. Rehnquist Nov 1978

The Adversary Society: Keynote Address Of The Third Annual Baron De Hirsch Meyer Lecture Series, William H. Rehnquist

University of Miami Law Review

In recent years litigants have pressed the courts to resolve disputes which were formerly regulated by other social and political institutions. Mr. Justice Rehnquist stresses the crucial importance of nongovernmental institutions in our society. He discusses the need to evaluate the disruptive effect of an adversary proceeding between parties who must continue in an ongoing relationship after their dispute has been settled. The author then suggests that in order to preserve certain social institutions, limits must be placed on the use of adversary proceedings.

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Seven Pluralist Fallacies: In Defense Of The Adversary Process-A Reply To Justice Rehnquist, Laurence H. Tribe Nov 1978

Seven Pluralist Fallacies: In Defense Of The Adversary Process-A Reply To Justice Rehnquist, Laurence H. Tribe

University of Miami Law Review

The author analyzes the role of litigation in a pluralistic society through his discussion of the "pluralist's fallacies," seven characteristic errors underlying much opposition to judicial activism. He advocates a large and active role for the adversary process in order to ensure that less established groups have a forum in which to protect their interests.

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The Right To Counsel In Police Interrogation Cases: Miranda And Williams, Mitchell Leibson Chyette Oct 1978

The Right To Counsel In Police Interrogation Cases: Miranda And Williams, Mitchell Leibson Chyette

University of Michigan Journal of Law Reform

This article will consider some of the theoretical and practical ramifications of the Williams decision and compare its protections to the protections offered by Miranda. The article, focussing on the right to counsel, discusses the nature of the police conduct which is prohibited by each decision, the time at which the protections involved become effective, and the standard by which a waiver of the rights will be measured. The article concludes that there may be significant differences in the application of the two cases and that a uniform rule based on the sixth amendment may be superior to the …

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Glosses On Dworkin: Rights, Principles, And Policies, Donald H. Regan Aug 1978

Glosses On Dworkin: Rights, Principles, And Policies, Donald H. Regan

Articles

A great many people have attempted to explain what is wrong with the views of Ronald Dworkin. So many, indeed, that one who read only the critics might wonder why views so widely rejected have received so much attention. One reason is that, whatever may be wrong in Dworkin's theories, there is a good deal that is right in them. But what is right is not always clear. Important passages in Dworkin can be distressingly obscure, or tantalizingly incomplete. This essay is a set of loosely connected observations on themes from Dworkin. While I shall add some criticisms of my …

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Reflections On A Unified Theory Of Motive, Theodore Eisenberg Aug 1978

Reflections On A Unified Theory Of Motive, Theodore Eisenberg

Cornell Law Faculty Publications

No abstract provided.

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Judicial Controls And The Civil Litigative Process: Discovery, Paul R. Connolly, Edith A. Holleman, Michael J. Kuhlman Jun 1978

Judicial Controls And The Civil Litigative Process: Discovery, Paul R. Connolly, Edith A. Holleman, Michael J. Kuhlman

Federal Judicial Center Reports

This report should be viewed as a beginning. It explores from one perspective the operation of the federal rules governing discovery as revealed in more than 7,000 docketed requests appearing in more than 3,000 terminated cases in six United States district courts, (A survey of practitioners in the six districts suggests that the docketed requests cover the great bulk of discovery activity.) The report is a continuation of the Center's District court studies Project, the first report of which (Case Management and Court Management in United States District Court) appeared several months ago.

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The Implications Of "Resegregation" For Judicially Imposed School Segregation Remedies, Charles T. Clotfelter May 1978

The Implications Of "Resegregation" For Judicially Imposed School Segregation Remedies, Charles T. Clotfelter

Vanderbilt Law Review

This Article examines the implications of changing racial patterns--particularly those tending to resegregate schools--as they bear on the formulation of judicial remedies for school segregation. The Article considers both the effect of changing residential racial patterns upon racial patterns in schools and the effect of school desegregation upon the level of white enrollment. A third question that also may be relevant in this connection concerns the extent to which the possible existence of such resegregation constitutes a legitimate consideration in school desegregation cases. For example,fourteenth amendment requirements may render white flight a wholly irrelevant factor in some desegregation cases. This …

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The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson May 1978

The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson

Michigan Law Review

This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …

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Hardin And Medvid: A Change In Indiana's Entrapment Law, Michael Hyatte Apr 1978

Hardin And Medvid: A Change In Indiana's Entrapment Law, Michael Hyatte

Indiana Law Journal

No abstract provided.

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Toward Freedom From Value, Richard Stith Jan 1978

Toward Freedom From Value, Richard Stith

Law Faculty Publications

No abstract provided.

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Confessions Of Judgement In Illinois: The Need For Change Persists, Cindy F. Wile Jan 1978

Confessions Of Judgement In Illinois: The Need For Change Persists, Cindy F. Wile

Loyola University Chicago Law Journal

No abstract provided.

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Irvin C. Rutter, Gordon A. Christenson Jan 1978

Irvin C. Rutter, Gordon A. Christenson

Faculty Articles and Other Publications

Tribute to legal scholar, Irvin Rutter.

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Truthfulness And Tragedy (Book Review), Thomas L. Shaffer Jan 1978

Truthfulness And Tragedy (Book Review), Thomas L. Shaffer

Journal Articles

This is the third book in which Professor Stanley Hauerwas has developed his "story" approach to Christian ethics. It is a collection of essays, almost all of which appeared in periodicals, written while he was developing his theory more systematically in Vision and Virtue (1974), and in Character and the Christian Life (1975). One of the chapters here, on suicide and euthanasia, was written with Dr. Richard Bondi; two others, on story theology and on Albert Speer's Inside the Third Reich, were written with Father David B. Burrell. The essays are arranged so that they explain and defend Hauerwas' thought …

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Of Men And Laws: Murphy, Cornford, Arnold, Potter, Parkinson, Peter, Maccoby, And Gall, Melvin J. Sykes Jan 1978

Of Men And Laws: Murphy, Cornford, Arnold, Potter, Parkinson, Peter, Maccoby, And Gall, Melvin J. Sykes

Maryland Law Review

No abstract provided.

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Televised Trials: Constitutional Constraints, Practical Implications, And State Experimentation, Shelly Byron Kulwin Jan 1978

Televised Trials: Constitutional Constraints, Practical Implications, And State Experimentation, Shelly Byron Kulwin

Loyola University Chicago Law Journal

No abstract provided.

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Remarks On Probability In Law: Mostly, A Casenote And A Book Review, Robert Birmingham Jan 1978

Remarks On Probability In Law: Mostly, A Casenote And A Book Review, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

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The Jurisprudence Of Judge Hardy Cross Dillard, Charles E.M. Kolb Jan 1978

The Jurisprudence Of Judge Hardy Cross Dillard, Charles E.M. Kolb

Vanderbilt Journal of Transnational Law

The purpose of this article is to provide a critical assessment of Judge Dillard's performance during his tenure on the International Court of Justice. Much of this article will be "jurisprudential" in scope, endeavoring to examine developments in international legal theory and international organizations during the past two decades and to assess recent decisions written by the Court. The approach will in part be an institutional one, taking into consideration the ability of an individual member of the Court to shape decisional outcomes of an international body which must resolve contentious litigation and render advisory opinions within the structure of …

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Book Review, Igor I. Kavass Jan 1978

Book Review, Igor I. Kavass

Vanderbilt Journal of Transnational Law

The limited use of American case law in the Commonwealth countries should not be surprising. With the exception of English cases, the decisions of other Commonwealth countries receive the same indifferent treatment in all Commonwealth jurisdictions; the English courts studiously ignore the decisions of other Commonwealth countries. For that matter, American courts do not consult the case law of English and other Commonwealth countries all too frequently. Espinoza v. Farah Manufacturing Co. is a recent example in point. In that case, the Supreme Court was asked to interpret the meaning of the terms "nationality" and "national origin" as used. in …

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On Teaching Natural Law, David F. Forte Jan 1978

On Teaching Natural Law, David F. Forte

Law Faculty Articles and Essays

With the materials at hand which this appendix has listed, an instructor can better sort and choose from all categories, so as to concentrate more effectively, on those aspects of natural law legal theory and practice which he deems valuable for his students.

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The Theory Of Judicial Reasoning--Toward A Reconstruction, Peter W. Gross Jan 1978

The Theory Of Judicial Reasoning--Toward A Reconstruction, Peter W. Gross

Kentucky Law Journal

No abstract provided.

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Prior Consistent Statements, Arthur H. Travers Jr. Jan 1978

Prior Consistent Statements, Arthur H. Travers Jr.

Publications

No abstract provided.

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The Meek Shall Inherit A Global Bill Of Rights, Lung-Chu Chen Jan 1978

The Meek Shall Inherit A Global Bill Of Rights, Lung-Chu Chen

Other Publications

No abstract provided.

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Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle Jan 1978

Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle

Articles by Maurer Faculty

The adoption of a new principle of law invariably impinges upon related legal concepts, raising issue that were not considered when the law was changed. The adoption of comparative negligence, a drastic departure from the long-held principle of contributory negligence, has forced courts to consider how the related concept of assumption of risk is affected by the change. Because there are different types of assumption of risk, and various doctrinal, practical, and policy issues, a proper determination of the role for assumption of risk in a comparative negligence system depends upon a thorough examination of many relevant considerations. Unfortunately, two …

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Jurisprudence "Under-Mind": The Case Of The Atheistic Solipsist, Ira Robbins Jan 1978

Jurisprudence "Under-Mind": The Case Of The Atheistic Solipsist, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Nearly thirty years have passed since the publication of Professor Lon L. Fuller's The Case of the Speluncean Explorers, in which a fictional court expounded upon the manifold ways in which certain harsh necessities, externally imposed upon common people, can test the rules of the criminal law. The instant case is not in- tended to parody the Speluncean Explorers, but rather to complement it with the inverse theme: the singular defendant is a psychologically extraordinary individual existing in a relatively mundane environment. The Atheistic Solipsist provides the opportunity for consideration of the ways internal forces of great intensity can shape …

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The Restoration Of In Re Winship: A Comment On Burdens Of Persuasion In Criminal Cases After Patterson V. New York, Ronald J. Allen Nov 1977

The Restoration Of In Re Winship: A Comment On Burdens Of Persuasion In Criminal Cases After Patterson V. New York, Ronald J. Allen

Michigan Law Review

At the conclusion of its last term, the Supreme Court rendered what should have been a most unremarkable decision. In Patterson v. New York, the Court upheld New York's affirmative defense of extreme emotional disturbance, which requires a defendant who seeks to reduce his offense from murder to manslaughter to prove by a preponderance of the evidence that he acted under extreme emotional disturbance. Had the case come before the Court seven years earlier, it could have been swiftly dispatched with a brief opinion upholding the New York statute on the grounds that the issue of extreme emotional disturbance …

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Justiciability And Theories Of Judicial Review: A Remote Relationship, Lee A. Albert Sep 1977

Justiciability And Theories Of Judicial Review: A Remote Relationship, Lee A. Albert

Journal Articles

No abstract provided.

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Criminal Procedure As Defined By The Tennessee Supreme Court, Julian L. Bibb, Walter S. Weems May 1977

Criminal Procedure As Defined By The Tennessee Supreme Court, Julian L. Bibb, Walter S. Weems

Vanderbilt Law Review

The Tennessee Supreme Court, elected simultaneously for the first time since the early 1900's, assumed office in September 1974 amid speculation concerning future judicial policy. The court, com-posed of Chief Justice William H. D. Fones and Justices Ray L.Brock, Jr., Robert E. Cooper, William J. Harbison, and Joe W.Henry, immediately indicated the importance of a uniform judicial policy governing criminal procedure by creating a special commission to revise the state rules of criminal procedure. Additionally,during its present term the court has decided numerous cases directed toward the formation of well-defined rules under which criminal allegations can be adjudged. This Special …

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Can/Should Computers Replace Judges?, Anthony D'Amato Jan 1977

Can/Should Computers Replace Judges?, Anthony D'Amato

Faculty Working Papers

Speculates concerning judicial decision-making to test, at least theoretically, what some of the implications of jurisprudential advances might be. Proposes as the means of making this test a consideration of whether a computer may be so programmed as to replace the judicial function of judges.

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