Law Commons^™

A Jewish Law View Of World Law, Michael J. Broyde

Faculty Articles

This paper will explore two basic Jewish law questions which reflect on the technical issues related to Professor Berman's world law proposal. The first question asks how Jewish law views public international law and whether public international law can be incorporated into the corpus of Jewish law. The second question asks how Jewish law generally incorporates domestic (municipal) law into Jewish law and if this classical paradigm of integration assists in formulating a Jewish law view of world law. To the best of my knowledge, the first matter is a question of nearly first impression in the Jewish law literature.

God In The Machine: A New Structural Analysis Of Copyright's Fair Use Doctrine, Matthew Sag

Faculty Articles

Recognition of the structural role of fair use has the potential to mitigate some of the uncertainty of current fair use jurisprudence. The statutory framework for fair use both mitigates and causes uncertainty. It mitigates uncertainty by providing a consistent framework of analysis the four statutory factors. However, when judges apply the statutory factors without articulating or justifying their own assumptions, they increase uncertainty. The statutory factors mean nothing without certain a priori assumptions as to the scope of the copyright owner's rights. A more stable and predictable fair use jurisprudence would begin to emerge if those assumptions were made …

The Social Foundations Of Law, Martha Albertson Fineman

Faculty Articles

There are several important questions to ask both our politicians and ourselves as we seek to refine and further define an otherwise abstract commitment to substantive equality with which to replace our current formal version. As with many concepts of historic magnitude, some of the most significant questions to pose about equality have to do with how we should respond to evolutions in understanding and changes in aspiration for the term: ls a mere commitment to formal equality sufficient for a humane and modem state? How should the state respond to the fact that our society is increasingly one in …

The Morality Of Human Rights: A Nonreligious Ground?, Michael J. Perry

Faculty Articles

In the midst of the countless, grotesque inhumanities of the twentieth century, however, there is a heartening story, amply recounted elsewhere: the emergence, in international law, of the morality of human rights. The morality of human rights is not new; in one or another version, the morality is very old. But the emergence of morality in international law, in the period since the end of World War II, is a profoundly important development.

The twentieth century, therefore, was not only the dark and bloody time; the second half of the twentieth century was also the time in which a growing …

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Faculty Articles

Recent empirical studies by economists have shown, without exception, that capital punishment deters crime. Using large data sets that combine information from all fifty states over many years, the studies show that, on average, an additional execution deters many murders. The studies have received much publicity, and death penalty advocates often cite them to show that capital punishment is sound policy.

Indeed, deterrence is the central basis that many policymakers and courts cite for capital punishment. For example, President Bush believes that capital punishment deters crime and that deterrence is the only valid reason for capital punishment. Likewise, the Supreme …

The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren L. Hutchinson

Faculty Articles

This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, …

Take The Money Or Run: The Risky Business Of Acting As Both Your Client's Lawyer And Bail Bondsman, Dayla S. Pepi

Faculty Articles

The American Bar Association strongly discourages lawyers from being bondsmen due to the conflicts that can arise when a criminal defense attorney acts as their client's bail bondsman. These same ethical dilemmas can also be encountered in posting a bond for a client in civil matters such as probate, family law, and appeals. In Texas, lawyers are exempt from the requirements of licensure as a bondsmen, including the requirement to maintain a particular level of security to underwrite the bonds. Nonetheless, lawyers are still required to conform to the requirements regulating the practice of bondsmen.

It is not enough for …

The New Prosecution, Kay L. Levine

Faculty Articles

This Article proceeds as follows. Part I introduces the Statutory Rape Vertical Prosecution Program that took shape in California in the mid-1990s. In addition to explaining how this program emerged and its central features, I highlight the aspects of the SRVPP that distinguish California statutory rape prosecutors from the traditional image of the local prosecutor in the United States. Part II offers some background on the new prosecution and the problem-oriented approach to criminal justice, explaining how this model differs from the traditional crime-based or case-based method of criminal justice work. In Part III, I use empirical data derived from …

When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel

Faculty Articles

The decision as to who has the authority to bring a matter up for resolution before a criminal court is one of the most basic decisions a system of criminal adjudication must make. Despite - or perhaps because of - the elemental nature of this structural matter, historians and scholars of criminal procedure have thus far offered a startling paucity of evidence as to the history and policy consequences of different docket control regimes. This article offers the first comprehensive examination of this issue, rescuing the history of criminal court calendar control from the dustbin of history and grappling in …

A Call From Jerome, Robert S. Chang

Faculty Articles

This short article is a homage to the late Professor Jerome M. Culp, Jr. who provided courage necessary to propel critical race legal scholarship. He focused on building coalitions in the Crit community and his more recent work urged looking inwards. While he has passed away, his call to action remains.

What Is War? Reflections On Free Speech In 'Wartime, David Skover, Ronald Collins

Faculty Articles

Written as the lead article for a Symposium issue commemorating the Free Speech in Wartime Conference held in January of 2005 at Rutgers Law School - Camden, this piece analyzes the following questions: What qualifies as war in the 21st Century? Who determines when the country is at war? And what effect, if any, should the existence of a war have on judicial review of First Amendment challenges?

Evaluating Brady Error Using Narrative Theory: A Proposal For Reform, John B. Mitchell

Faculty Articles

When the United States Supreme Court granted certiorari in Old Chief v. United States, the Court examined Federal Rule of Evidence 403 in light of a defense offer to stipulate to aspects of the proffered prosecution evidence, purportedly to lessen their prejudicial impact. At the core of the opinion rests the validation of a theory born from such disparate fields as Law and Literature, Sociology, and Narrative Theory. This article argues that, though it was not on the proverbial radar screen of the Court when it decided Old Chief, narrative theory provides the most effective tool available for assessing prejudice …

Screening The Law: Ideology And Law In American Popular Culture, Mark Niles, Naomi Mezey

Faculty Articles

This paper reevaluates Frankfurt School theory, and other cultural critiques, in an effort to bring a more sophisticated analysis to bear on popular culture depictions of law. It invokes the cultural critiques of the Birmingham School in order to assess the more subtle ideological content more often found in film. The focus is not only on how popular culture functions as a mechanism for communicating and reproducing ideologies, but also what this function is based on, a theoretical analysis that asks what images of law and legal justice one might expect to see in popular media. The article also assesses …

Litigating Global Warming: Substantive Law In Search Of A Forum, Henry Mcgee

Faculty Articles

In response to the obstruction by the United States of the Kyoto protocols and its subsequent agreements, American environmental NGOs and state governments have filed a range of lawsuits to force the current U.S. administration, automobile manufacturers, and regulatory actors to combat global warming. This essay first very briefly sketches some of the strategies by litigants to force compliance with Kyoto, an agreement which reflects nearly all of the international community's desire to schedule reductions in greenhouse gas emissions. The essay then describes a strategy that perhaps is the most conventional in terms of international law, but requires a nation …

Reflections On Complicity, Julie Shapiro

Faculty Articles

The author of this article participated in the litigation of Andersen v. King County, Washington in which lesbian and gay couples unsuccessfully sought access to marriage. Although part of the plaintiffs' litigation team, she is a feminist anti-assimilationist and as such, is generally opposed to articulating marriage as a priority of the lesbian/gay civil rights movement. Confronted with the undeniable reality that marriage has become the central demand of the lesbian and gay movement, the author explores the tensions and contradictions encountered during the litigation. The article examines how one might critically manifest resistance even while working for an assimilationist …

Military Justice At Abu Ghraib, Jeffrey F. Addicott

Faculty Articles

Previous efforts to denigrate the credibility of U.S. war policies in the War on Terror pale in the wake of the prisoner abuse scandal at Abu Ghraib. Photographic evidence of American soldiers abusing detainees created a firestorm of allegations concerning illegal interrogation practices and threatened to derail fundamental legal and policy pillars upon which America conducts the War on Terror. It raised the question of whether the prison abuse reflected a systemic policy to illegally obtain information from detainees or isolated acts of criminal behavior by a handful of soldiers. Thanks to several investigative reports, the legal and policy pillars …

Regulating Sars In China: Law As An Antidote?, Chenglin Liu

Faculty Articles

Severe Acute Respiratory Disease (SARS) is caused by a coronavirus, and as of this writing has no known vaccine or cure. Generally, the disease starts with a high fever, headaches, body aches, and mild respiratory symptoms. SARS spreads through respiratory droplets produced by an infected person when he or she coughs or sneezes or through physical contact.

The disease was first identified in a southern province of China in November of 2002, and quickly spread to twenty-seven different countries. In March of 2003, the World Health Organization (WHO) declared SARS a global health threat. In China, the economic and social …

Race And The California Recall: A Top Ten List Of Ironies, Steven W. Bender, Keith Aoki, Sylvia Lazos

Faculty Articles

Arnold Schwarzenegger's election as governor of California in the 2003 recall campaign is rife with cruel ironies. An immigrant himself, he beat the grandson of Mexican immigrants, Lieutenant Governor Cruz Bustamante, by playing the race card, and managed to dodge allegations of his praise for Hitler as a strong leader. While the pundits say that the California recall was about angry voters lashing back at faithless, self-dealing politicians, more lurks beneath the surface. In California, racial and ethnic minorities now comprise a majority of the population, and the recall election brought barely concealed and seething schisms to the surface. Californians, …

The Case Of The Little Yellow Cuban Biplane: Can Interest Analysis Reconcile Conflicting Provisions In Federal Statutes And International Treaties?, Diane Lourdes Dick

Faculty Articles

This article analyzes conflicts that arise under international agreements that define and protect foreign ownership interests in civil aircraft, on the one hand, and domestic laws that allow Americans to bring suit against state sponsors of terrorism, on the other hand. Finding that courts often perform concealed interest analyses under the guise of mechanical application of canons of construction, this article recommends a comparative impairment interest analysis approach to resolving this and related conflicts.

Check Only One: M/F/Other, Julie Shapiro

Faculty Articles

In this extremely brief essay, the author questions Lawrence Summers' generalizations about women in science. We live in a world of uncertainty about the boundaries of gender. Transgendered and intersexed individuals challenge us to step away from strict categories of men and women.

Allegory From The Cave: A Story About A Mis-Educated Profession And The Paradoxical Prescription, Natasha Martin

Faculty Articles

The article reviews and engages Professor Derrick Bell’s more recent scholarship on the nature of the legal profession and the practice of law – ETHICAL AMBITION: LIVING A LIFE OF MEANING AND WORTH – placing Bell’s work in the broader framework of the entire legal enterprise highlighting its relevance to legal ethics, the ills of the profession and legal training. The article juxtaposes Bell’s more contemporary critique of the legal profession and practice with the observations of Carter G. Woodson in THE MIS-EDUCATION OF THE NEGRO, another African-American educator largely unfamiliar to the broader legal academy. The author proposes that …

A Curious Concurrence: Justice Brandeis' Vote In Whitney V. California, David Skover, Ronald Collins

Faculty Articles

A piece of jurisprudential sleuthing, this article uncovers the back story for a puzzle unanswered by legal historians for some eighty years: Why would the free-speech libertarian Louis Brandeis write the most famous paean to First Amendment normative values in his opinion in Whitney v. United States, and yet join (by way of a concurring opinion) the judgment of the majority of the Court that would have sent the "patrician radical" Anita Whitney to prison for a 14-year term solely for participating in the formation of the California Communist Labor Party? Part of the puzzle is provided by the unpublished …

Freedom In A Regulatory State?: Lawrence, Marriage And Biopolitics, Dean Spade, Craig Willse

Faculty Articles

This paper attempts to trace the links between the Lawrence v. Texas decision and campaigns for gay marriage rights in order to envision movements that seek justice for more than just the most racially and economically privileged lesbians and gay men. The authors outline the limits of the agenda represented by Lawrence and propose alternative modes for resisting the coercive regulation of sexuality, gender, and family formations.

The Documentary History Of The Supreme Court Of The United States. 1789-1800. Vol. 7, Cases: 1796-1797, George Van Cleve

Faculty Articles

In this review, the author expresses praise for DHSC 7, a document that covers court cases from 1796 to 1797. It highlights various particular cases while noting how effectively they are examined. Ultimately, the review advocates that students of legal history should consider the DHSC 7.

An Appreciation Of Professor Herbert Johnson: Introduction To Symposium Introduction, Andrew Siegel

Faculty Articles

On October 29, 2004, the American Society for Legal History (ASLH) held a panel at its annual scholarly conference in Austin, Texas, entitled “Herbert Johnson and the Writing of American Constitutional History." The Herbert Johnson of that title is Herbert Alan Johnson, for twenty-five years a Professor of Law and History at the University of South Carolina and, since 2002, Distinguished Professor Emeritus of Law. That ASLH panel and the papers that flowed from it are the inspiration for—and in large part, the substance of—the Symposium that follows. To write a tribute to the life's work of a living individual …

In (Slightly Uncomfortable) Defense Of ‘Triage’ By Public Defenders, John B. Mitchell

Faculty Articles

This article argues that triaging is necessary for public defenders and is a response to the work of Professor Freedman. Because states lack money in areas of greater community concern, the defense of indigent criminals is neglected and substantial resources are not likely to be forthcoming. The author previously set out a solution of triaging, which can be conducted either haphazardly or according to some set of rational principles based on ethical theory. The author concurs with Professor Freedman to the extent that the United States Supreme Court in Strickland v. Washington effectively ensures that Sixth Amendment Constitutional guarantees will …

Leveling The Playing Field: A New Theory Of Exclusion For A Post-Patriot Act America, Christian Halliburton

Faculty Articles

This article takes the position that, although the PATRIOT Act is superficially unrelated to the specifics of the exclusionary rule, such a drastic departure from constitutional norms would not have been possible had the Court not conditioned the Fourth Amendment exclusionary rule's operation on pursuit of the inherently unstable target of institutional deterrence. Part I of this article will trace the development of the Fourth Amendment's exclusionary rule from its origins in federal court through its incorporation against the states, paying particular attention to the underlying purpose of the exclusionary rule as announced by the Court, and concluding with a …

Private Motive And Perpetual Conditions In Charitable Naming Gifts: When Good Names Go Bad, John K. Eason

Faculty Articles

This article explores the problems that often result from a charitable naming opportunity contribution. A charitable naming opportunity contribution exists when a donor transfers money or property to a charitable organization upon terms that result in an individual's name being associated in some way with the organization, its institutions, activities, or facilities. Implementing such arrangements can become problematic as circumstances change over time. Matters considered here include the meaning of "charity" as affected by a donor's personal desire to perpetuate a name. This article also highlights the quite varied doctrinal analyses that may apply when deviation from the precise terms …

Article 9 Of The Constitution Of Japan And Procedural And Substantive Heuristics For Consensus, Mark A. Chinen

Faculty Articles

Japan is considering changes to its constitution, including Article 9, which prohibits it from maintaining a military force. If amendments are made, it would mark the first time the Japanese constitution has been amended since its establishment in 1947. Professor Chinen examines the debates on Article 9 using scholarship on constitutions as providing heuristics for decision-making. Constitutions help overcome the problems of emotion and time-inconsistency. They also enable societies of different deliberative groups to avoid the pitfalls of deliberation by requiring groups to interact with one another and by providing opportunities for compromise through what Cass Sunstein refers to as …

Limit Horizons & Critique: Seductions And Perils Of The Nation, Tayyab Mahmud

Faculty Articles

This essay introduces four contributions on nation and nationalism that form a cluster in the 2005 Annual Symposium of Latina/o Critical Legal Theory (LatCrit). It puts forward the concept of "limit horizons": the hegemonic ontological categories that so imprint the imaginary of an age the even critique remains imprisoned in the normalcy of these categories - an imprisonment that curtails the transformatory potential of critique. It is argued that the modern concept of the nation is such a limit horizon. Consequently, any critical engagement with the concept of the nation must concurrently be an exercise in self-critique to ensure that …