Law Commons^™

Taking Pierce Seriously: The Family, Religious Education, And Harm To Children, Richard W. Garnett

Journal Articles

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious …

Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner

Journal Articles

In recent years, perhaps no institution of American governance has been so thoroughly and consistently excoriated by legal theorists as the familiar American system of winner-take-all elections. The winner-take-all system is said to waste votes, lead to majority monopolization of political power, and cause the under representation and consequent social and economic subordination of political minorities. Some political scientists have attempted to defend winner-take-all systems on the ground that they perform better than PR in maximizing long-term collective and social interests. This article argues, in contrast, that winner-take-all electoral systems rest upon, and can be adequately defended, if at all, …

On The Incoherence Of Legal Positivism, John Finnis

Journal Articles

Legal positivism is an incoherent intellectual enterprise. It sets itself an explanatory task which it makes itself incapable of carrying through. In the result it offers its students purported and invalid derivations of ought from is.

In this brief Essay I note various features of legal positivism and its history, before trying to identify this incoherence at its heart. I do not mean to renege on my belief that reflections on law and legal theory are best carried forward without reference to unstable and parasitic academic categories, or labels, such as "positivism" (or "liberalism" or "conservatism," etc.). I use the …

Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder

Journal Articles

The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the …

Can Party Politics Be Virtuous?, James A. Gardner

Journal Articles

No abstract provided.

From Nuremberg To The Rwanda Tribunal: Justice Or Retribution?, Makau Mutua

Journal Articles

No abstract provided.

Incorporation Of "Private" Environmental Certification Systems In Formal Legal Systems: The U.S. Case., Errol E. Meidinger

Journal Articles

No abstract provided.

Whose Team Am I On Anyway - Musings Of A Public Defender About Drug Treatment Court Practice, Mae C. Quinn

Journal Articles

No abstract provided.

Inverting The Viability Test For Abortion Law, Bruce Ching

Journal Articles

The abortion controversy is likely to become even more pressing with the development of technological advancements that enhance the chances for fetal survival of the abortion procedure. This essay explores the consequences of recognizing that keeping the fetus alive does not depend on keeping the fetus in utero.

Casting Light On Cultural Property (Book Review), John Costonis

Journal Articles

No abstract provided.

Private Problem, Public Solution: Affirmative Action In The 21st Century, Darlene Goring

Journal Articles

No abstract provided.

The Wasted Sacrifice Of Lessors' Lost Profit Claims In Bankruptcy, Marie T. Reilly

Journal Articles

Bankruptcy Code section 502(b)(6) sets the maximum allowable amount of a real property lessor's claim for damages arising for breach of lease in a tenant's bankruptcy case. To the extent a lessor's damages claim under nonbankruptcy law exceeds the maximum amount, it is disallowed. The implicit premise for such disallowance is that real property lessors' damages claims are less worthy of respect in bankruptcy than other claims for damages against the debtor. Real property leases are legally distinct from leases of personal property or other contractual relationships that allocate property rights. But, it does not obviously follow from the distinction …

Aren't You Latino: Building Bridges Upon Common Misperceptions, Victor C. Romero

Journal Articles

This article addresses minority on minority oppression and itragroup animosity. The author discusses ways in which communities of color can use common misperceptions to their advantage as a bridge to building a larger community.

The Domestic Fourth Amendment Rights Of Undocumented Immigrants: On Guitterez And The Tort Law/Immigration Law Parallel, Victor C. Romero

Journal Articles

This Article is composed of three parts. Part I examines the problems raised by the Gutierrez I regime, including the collapse of the protective constitutional floor of immigrants' rights portended by that decision. Part II contends that the current plenary power approach to immigration and immigrants' rights issues would likely support, rather than dismantle, the Gutierrez I approach to undocumented immigrants' Fourth Amendment rights. Part III provides an alternative to the plenary power regime by drawing a parallel between domestic tort law for premises liability and immigrants' rights law. This part concludes by showing that Rowland and its progeny could …

Introduction To The Articles Presented By Three Rising Stars In Bankruptcy Scholarship, Samuel Bufford

Journal Articles

Bankruptcy law is one of the fundamental legal structures necessary to the functioning of a market economy. In the common law tradition of the United States and England, bankruptcy law dates back to 1542. Bankruptcy law's origins are even more ancient, with roots extending back to at least the Hammaurabi Code and the Law of Moses. In the transition to market economies and Western-style legal systems in Central and Eastern Europe, the development of a viable bankruptcy law is one of the first priorities. This, the United States bankruptcy law that forms the background for this symposium is central to …

Statutory Interpretation In The Courtroom, The Classroom, And Canadian Legal Literature, Stephen F. Ross

Journal Articles

In recent years, judges and scholars in Canada and the United States are devoting more attention to the theory and techniques involved in statutory interpretation. Although some advocate "foundational" theories to answer all theories of interpretation, most difficult cases require a pragmatic approach that requires analysis of the statutory text, original legislative intent, and legislative purpose in light of modern circumstances. Moreover, the most difficult cases may not be answerable by any of these approaches. In difficult cases, judges often resort to "normative canons" - rules they created to further a jurisprudence they desire. These canons need to be closely …

How Good Is Good Enough?: Expert Evidence Under Daubert And Kuhmo, David H. Kaye, David L. Faigman, Michael J. Saks, Joseph Sanders

Journal Articles

This essay is a response to Professor Edward Imwinkelried's article, "Should the Courts Incorporate a Best Evidence Rule into the Standard Determining the Admissibility of Scientific Testimony?: Enough is Enough When it is not the Best." The authors have two basic points. First, the authors wish to make it clear that they never proposed the "best evidence rule" that he so vigorously attacks, and they think his suggestion that they did so is strained. Second, they wish to reiterate that courts sometimes should do more than they have to ensure that expert testimony is reasonably sound. The important debate underway …

South African Perspectives: Its Prospects And Its Income Tax System, Samuel C. Thompson Jr.

Journal Articles

No abstract provided.

In Service To America: Naturalization Of Undocumented Alien Veterans, Darlene Goring

Journal Articles

No abstract provided.

Federal Jurisdiction And Procedure, Keith B. Hall

Journal Articles

No abstract provided.

Subsidized Lives And The Ideology Of Efficiency, Martha T. Mccluskey

Journal Articles

No abstract provided.

Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith

Journal Articles

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …

Critical Race Theory And International Law: The View Of An Insider-Outsider, Makau Mutua

Journal Articles

This article contends that international law, like national law, is captive to the racial biases and hierarchies that hide injustice under the pretext of legal neutrality and universality. It argues that international law is tormented by racist and hegemonic asymmetries that govern the international order. The piece posits that international law could benefit greatly from the method of critical race theory in unpacking the pathologies of power and race that define it. It focuses on the use of international law to conceive and buttress the exploitation and marginalization of the North by the South. It calls for a reconstruction of …

The Voice Of Willard Hurst, Alfred S. Konefsky

Journal Articles

No abstract provided.

The Good Samaritan And Admiralty: A Parable Of A Statute Lost At Sea, Patrick J. Long

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No abstract provided.

Comment, Traitors In Our Midst: Attorneys Who Inform On Their Own Clients, Aviva Abramovsky

Journal Articles

No abstract provided.

Corrective Justice And The Revival Of Judicial Virtue, Mark C. Modak-Truran

Journal Articles

Judges must be wise. Sound judicial reasoning requires moral virtue. These sentiments about judging have been lost. They apparently belong to a bygone era. While many advocate self-restraint or prudence as judicial virtues, moral virtue has been conspicuously absent from the list. Except for avoiding obvious vices such as bribery, favoritism, prejudice, sloth, and arbitrariness, conventional wisdom maintains that being a good judge does not require being a good person. Even theorists sympathetic to a relationship between law and morality balk at making moral virtue a prerequisite of judicial decision making. Rather, many contend that judicial decision making is a …

Sex & Surveillance: Gender, Privacy & The Sexualization Of Power In Prison, Teresa A. Miller

Journal Articles

In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches.

The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually …

Five Years After Beijing: A Report Card On Women’S Human Rights, Athena D. Mutua

Journal Articles

No abstract provided.

What Is Twail?, Makau W. Mutua

Journal Articles

The piece seeks to conceptualize the insurgent movement in international law known as Third World Approaches to International Law. Driven by scholars from the Third World, TWAIL rejects the traditional tenets and assumptions of traditional international law and argues for a re-imagination of the law of nations to purge it of racial and hegemonic precepts and biases to create a truly universal corpus that embraces inclusivity and empowerment. The movement turns away from the imperialist and colonialist foundation of international law. It argues that international law must be devoid of oppression, exploitation, and domination. The piece is among the first …