Law Commons^™

A Tribute To My Friend, Wendy B. Scott

Journal Articles

No abstract provided.

From An Act Of God To The Failure Of Man: Hurricane Katrina And The Economic Recovery Of New Orleans, Wendy B. Scott

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No abstract provided.

Book Review, Mark C. Modak-Truran

Journal Articles

In volume 1, James Hitchcock provides a comprehensive historical treatment of all the U.S. Supreme Court cases involving the religion clauses. Volume 2 focuses on the broader “context of the continuing dialogue about the role of religion in public life” and its relationship to the Court’s interpretation of the religion clauses.

Seeking Different Treatment, Or Seeking The Same Regard: Remarketing The Transracial Adoption Debate, Angela Mae Kupenda

Journal Articles

The transracial adoption discourse mistakenly has been phrased as a request for black children awaiting adoption to be treated different from white children and to be placed with parents of like race only. This paper urges a remarketing of the transracial adoption debate to reflect a request based on sameness, not difference. The request presented here is not a request for different treatment for black children. Rather, it is for black children to be given the same regard that is given to white children. This request is illustrated with the story of a black couple seeking to adopt healthy, fat …

Fahrenheit 451on Cell Block D: A Bar Examination To Safeguard America’S Jailhouse Lawyers From The Post-Lewis Blaze Consuming Their Law Libraries, Evan R. Seamone

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No abstract provided.

Book Review, Deborah Challener

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COURTIERS OF THE MARBLE PALACE is a compelling, informative book. As much as anything, it is a tremendous informational source for anyone interested in the Supreme Court. It is evident that the author has thoroughly researched the topic and provided the reader with a factual view of the past and present responsibilities of a Supreme Court law clerk. Because Peppers relies on principal-agent theory to develop his hypotheses and used exhaustive research to prove them, the book also appears to be objective.

Understanding The Person Beneath The Robe: Practical Methods For Neutralizing Harmful Judicial Biases, Evan R. Seamone

Journal Articles

This article presents hands-on self-awareness techniques for use by judges, arbitrators, members of commissions, and other legal decision-makers who are confronted with complex cases. All too often, these judges are expected to make the “right” decisions without knowing how to accomplish this task. While judges, no doubt, are capable of applying the law to a case, this is only one aspect of righteous behavior. This article is concerned with the related expectation that judges are capable of rendering fair and impartial decisions. No matter how much training they receive, judges can only avoid biases that are known to them.

Law School Faculty As Mentors, Jim Rosenblatt

Journal Articles

Professors see potential in our students that they do not see themselves. Based on his or her knowledge of the student and his or her awareness of student performance in the classroom and on examinations, a professor might suggest a career path, an intern opportunity, a research topic, an advanced degree, or a job contact that the student had not considered through the "door opening" process by which the professor opens doors and helps the law student see what is behind that door. Without this mentoring assistance that door may never have been opened by the student left to her …

Lawmaking By Public Welfare Professionals, Gerald Jogerst, Jeanette Daly, Jeffrey Dawson, Gretchen Schmuch, Margaret F. Brinig

Journal Articles

When thinking of law-making, one usually thinks of the activities of Congress or state legislatures. Students of law and government may also think of the rule-making activities of federal or state bureaucracies. More recently, some attention has been paid to the lawmaking power known as prosecutorial discretion (the decision of whether or for what crimes to charge a criminal defendant) or judicial discretion in sentencing. However, so far most of this work has been theoretical or, at best, anecdotal. Further, far less attention has been paid to the ubiquitous activities of the bureaucrat who must decide whether or not to …

Roman Catholic Lawyers In The United States Of America, Thomas L. Shaffer

Journal Articles

My agenda here is Roman Catholics in the American legal profession, from George Higgins's Jerry Kennedy to Judge Samuel Alito's joining the four other Catholics to make a majority on the federal Supreme Court. (I thought, as I said this in Washington, just before the Senate confirmation hearings in January 2006, that some in attendance may not have thought about this, and may have wanted to leap to their feet and phone their senators.)

Begin with ethnographic narrowing: When I talk about Catholic lawyers in the U.S., I mean to talk about descendants of the late immigrants—that is, people whose …

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Journal Articles

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …

Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer

Journal Articles

Under the patent and copyright laws, the owner of a patent for an invention or of a copyright for a work has the right to sell, license or transfer it, to exploit it individually and exclusively, or even to decide to withhold it from the public. By contrast, under the antitrust laws, a unilateral refusal to deal may constitute an element of a violation of Section 2 of the Sherman Act, and the courts may then impose a duty on the violator to deal with others, including possibly with its actual or would-be competitors.

The central question addressed by this …

A Theory Of Federal Common Law, Jay Tidmarsh

Journal Articles

Federal common law is a puzzle. Despite Erie's declaration that "[t]here is no federal general common law,"' well-established and stable pockets of federal common law persist in several areas: cases affecting the rights and obligations of the United States,2 disputes between states, 3 cases affecting international relations,4 and admiralty.5 If anything, federal common law is expanding. Eighteen years ago, a case in which state law was in "significant conflict" with "uniquely federal interests" provided an occasion for the Supreme Court to create another form of federal common law.6 Five years ago, the Court added yet another piece to the puzzle, …

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Journal Articles

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often …

Foreword, Meredith Kolsky Lewis

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No abstract provided.

Bridging The Divide: Examining The Role Of The Public Trust In Protecting Coastal And Wetland Resources, Kim Diana Connolly

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No abstract provided.

The Rise, Development And Future Directions Of Critical Race Theory And Related Scholarship, Athena D. Mutua

Journal Articles

This essay tells the story of the rise, development and future directions of critical race theory and related scholarship. In telling the story, I suggest that critical race theory (CRT) rises, in part, as a challenge to the emergence of colorblind ideology in law, a major theme of the scholarship. I also contend that conflict, as a process of intellectual and institutional growth, marks the development of critical race theory and provides concrete and experiential examples of some of its key insights and themes. These conflicts are waged in various institutional settings over the structural and discursive meanings of race …

The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers

Journal Articles

Germany’s Federal Constitutional Court rivals the Supreme Court of the United States in protecting political democracy. Its jurisprudence of democracy has shaped the course and character of German politics while upholding the rule of law and defending the constitutionally prescribed “free democratic basic order.” In furtherance of these objectives, the Constitutional Court has invalidated regulations limiting the rights of minor parties and constitutionalizing measures designed to stabilize Germany’s system of parliamentary government. These purposes have been served by constitutional decisions on voting rights, public funding of election campaigns, dissolution of Parliament, and proportional representation, including the limiting 5 percent clause. …

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …

Religion And State: Some Main Issues And Sources, John M. Finnis

Journal Articles

Public reason's default position is not atheism or agnosticism about the dependence of everything on a transcendent Creator. On the contrary, there is good reason to judge that there is such a transcendent cause, capable of communicating with intelligent creatures, that one of the world's religions may be essentially true and others substantially truer than atheism, and that there is a human or natural right to immunity from coercion in religious inquiry, belief (or unbelief, precisely as such), and practice so far as is compatible with public order, that is with the rights of others, public peace and public morality. …

The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna

Journal Articles

This contribution to the Washington University School of Law conference on the Rehnquist Court and the First Amendment addresses the Rehnquist Court's view of the role of the First Amendment in intellectual property cases. It argues that, while the Rehnquist Court was not eager to find a conflict between intellectual property laws and the First Amendment, there is reason to believe that it set the stage for greater First Amendment scrutiny of intellectual property protections. At the very least, the Court left that road open to future courts, which might be inclined to view intellectual property more skeptically.

The "Public Use" Requirement In Eminent Domain Law: A Rationale Based On Secret Purchases And Private Influence, Daniel B. Kelly

Journal Articles

This Article provides a rationale for understanding and interpreting the public use requirement within eminent domain law. The rationale is based on two factors. First, while the government often needs the power of eminent domain to avoid the problem of strategic holdout, private parties are generally able to purchase property through secret buying agents. The availability of these undisclosed agents makes the use of eminent domain for private parties unnecessary and indeed undesirable. The government, however, is ordinarily unable to make secret purchases because its plans are subject to democratic deliberation and thus publicly known in advance. Second, while the …

Washington's "War Against Terrorism" And Human Rights: The View From Abroad, Douglass Cassel

Journal Articles

"When it comes to human rights, there is no greater leader than the United States of America," White House spokesman Scott McClellan has said.

The view from abroad is less kind. A recent resolution of the European Parliament, for example, "condemns" our government's treatment of prisoners at Guantanamo. It urges Washington to guarantee all prisoners "minimum human rights in accordance with international human rights law and fair trial procedures" and to "immediately clarify the situation of the prisoners." European objections run so deep that a New York Times account finds a "high level of anger in Europe at reports that …

Judicial Activism And Its Critics, Kermit Roosevelt, Richard W. Garnett

Journal Articles

"Judicial activism," writes Professor Kermit Roosevelt, of Penn, has been employed as an "excessive and unhelpful" charge--one "essentially empty of content." As a substitute, Roosevelt reviews here the framework for analysis of Supreme Court opinions that receives fuller treatment in his recent book, The Myth of Judicial Activism. Professor Richard W. Garnett, of Notre Dame, is willing to go along with "much, though not all, of" Roosevelt's position. Ultimately, Garnett suggests "that 'judicial activism' might be salvaged, and used as a way of identifying and criticizing decisions...that fail to demonstrate th[e] virtue" of constitutional "humility."

"The Dean Of Chicago's Black Lawyers": Earl Dickerson And Civil Rights Lawyering In The Years Before Brown, Jay Tidmarsh, Stephen Robinson

Journal Articles

Brown v. Board of Education is a watershed in American law and society. In the years since it was decided, Brown has shaped America's views of race, constitutionalism, and equality. Brown exerts an equally important influence over the historiography of civil rights lawyering in the decades before Brown. In particular, in constructing the story of civil rights lawyering in the crucial years between World War I and World War II, historians and legal scholars have focused primarily on the people and the events that shaped Brown.

Rules Of Evidence For The Use Of Force In International Law's New Era, Mary Ellen O'Connell

Journal Articles

International law is ready for a period of renewal in this post-post-modern era. I predict this renewal will come from reviving classical doctrines, such as the positive-law doctrine of sources, and from revisiting formalism. Such renewal will not be possible for the international law of evidence because there is no classical doctrine. Perhaps, as Charles Brower suggests, this is because of the differing civil and common law attitudes toward the rules of evidence, especially with respect to the burden of proof. It seems to me, however, that we need a law of evidence in international law, especially for the international …

Four Mistakes In The Debate On "Outsourcing Authority", Roger P. Alford

Journal Articles

The purpose of this Article is to discuss common mistakes in the current debate on outsourcing authority. The first mistake in the debate on outsourcing authority is about the protagonists. To focus solely on the fact that some justices espouse this approach, while others do not, distorts the true picture of the rich debate that is ongoing at the bar, the bench, the academy, and beyond. Mistaking the voices in the debate will distort what is at issue in the discussion. The reality is much more complex. There is a groundswell of opposition to this trend from various corners and …

Reflections On Us - Zeroing: A Study In Judicial Overreaching By The Wto Appellate Body, Roger P. Alford

Journal Articles

This essay is about the application of procedural approaches in the US-Zeroing case that serve to highlight potential problems with Appellate Body decision-making. Those problems go to central issues of judicial restraint, including concerns surrounding standards of review, appellate fact-finding, and notions of justiciability and ripeness. This essay will begin with an analysis of US-Zeroing's approach in applying the specialized standard of review under the Antidumping Agreement, arguing that it fails to adhere to the obligation of deference to permissible Member State interpretations of WTO antidumping obligations. It then examines the fact-finding procedures applied by the Appellate Body, which raise …

Ranks And Rivals: A Theory Of Competition, Avishalom Tor, Stephen M. Garcia, Richard Gonzalez

Journal Articles

Social comparison theories typically assume a comparable degree of competition between commensurate rivals on a mutually important dimension. In contrast, however, the following set of studies reveals that the degree of competition between such rivals depends on their proximity to a standard. Studies 1-3 test the prediction that individuals become more competitive and less willing to maximize profitable joint gains when they and their commensurate rivals are highly ranked (e.g., #2 vs. #3) than when they are not (e.g., #202 vs. #203). Studies 4-6 then generalize these findings, showing that the degree of competition increases not only for high ranks …

Personal Reflections On The Chief, Richard W. Garnett

Journal Articles

My favorite William Rehnquist quote is this, from Kansas v. Colorado: “The Arkansas River rises on the east side of the Continental Divide, between Climax and Leadville, Colorado. Thence it flows south and east through Colorado, Kansas, Oklahoma, and Arkansas, emptying into the Mississippi River, which in turn flows into the Gulf of Mexico. As if to prove that the ridge that separates them is indeed the Continental Divide, a short distance away from the source of the Arkansas, the Colorado River rises and thence flows southwest through Colorado, Utah, and Arizona, and finally empties into the Gulf of Baja, …