Law Commons^™

The Salience Of Race, Deborah W. Post

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No abstract provided.

Preface To The Gateway Thread, Deborah W. Post

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No abstract provided.

Dismantling Democracy: Common Sense And The Contract Jurisprudence Of Frank Easterbrook, Deborah W. Post

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No abstract provided.

Recent Supreme Court Employment Law Developments, Douglas D. Scherer, Olati Johnson

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No abstract provided.

Marketing Goods, Marketing Images: The Impact Of Advertising On Race, Deseriee A. Kennedy

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No abstract provided.

Teaching Interdisciplinarily: Law And Literature As Cultural Critique, Deborah Waire Post

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No abstract provided.

Teshuva: A Look At Repentance, Forgiveness And Atonement In Jewish Law And Philosophy And American Legal Thought, Samuel J. Levine

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Professor Levine examines the atonement model and its relevance to American law. He outlines and explains the necessary steps by the wrongdoer for atonement: repentance, apology, reparation and penance. The wronged party then has the obligation of reconciliation for the process to be complete. Despite the prominent position it has held for millennia in religious thinking, the atonement model is relatively new to American legal theory. Professor Stephen Garvey's attempt to offer a systematic depiction and analysis of the process of atonement and its possible relevance to American law appears to represent the most extensive effort to date. Any application …

Capital Punishment And Religious Arguments: An Intermediate Approach, Samuel J. Levine

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Determining the place and use of capital punishment in the American legal system is a challenging affair and one that is closely associated with and determined by religion's role in American legal decision-making. Both capital punishment and religion are controversial issues, and tend to challenge legal scholars and practitioners about whether they should function together or alone as valid parts of the legal system in the United States. Professor Levine argues that religious arguments should be employed to interpret and explain American legal thought when the need or proper situation arises. He uses capital punishment as an example of how …

Due Process And Fundamental Rights, Martin A. Schwartz

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No abstract provided.

Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky

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No abstract provided.

Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz

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No abstract provided.

Muddy Waters, Blue Skies: Civil Liability Under The Mississippi Securities Act, Keith A. Rowley

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The decade of the 1990s produced a series of actions by the United States Supreme Court and by Congress that, collectively, reduced the number of avenues by which plaintiffs relying on federal law may pursue alleged wrongdoers for securities fraud; imposed significant additional requirements on plaintiffs suing under federal securities law; preempted state registration requirements for several classes of securities; and curbed the availability of state courts as an alternative forum in which plaintiffs may pursue securities fraud claims. And yet, in spite of these changes, “Congress, the courts, and the SEC have made explicit that federal regulation was not …

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

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Critical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise of critical theory failed to materialize. Today, Habermas plays the role of the aging lion who refuses to accept …

Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii

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This Symposium brings the considerable talents of a diverse group of scholars to bear on a pressing problem in legal theory: Whether critical theory is possible after the hermeneutical turn. All too often, this problem is framed to invite an “either-or” response. Either we reject the hermeneutical turn and hew to a traditional account of critique anchored by an unimpeachable standard (whether economic, historical, conceptual, cognitive, or otherwise), or we take the hermeneutical turn by embracing radical historical contingency and fluidity, thereby forsaking the possibility of critique and surrendering to conservative conventionalism or inviting postmodern chaos. This Symposium challenges this …

Going From "Us" To "Them" In Sixty Seconds, Nancy B. Rapoport

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Observations by a professor who has decided to become an Associate Dean.

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stempel

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Some people (lawyers, scholars, judges, dispute resolvers, policymakers) are more concerned about fidelity to procedural protocols while others are more concerned with the substantive rules governing disputes and substantive outcomes. Those in the dispute resolution community preferring facilitation tend to be proceduralists. For them, the observance of proper procedure is a high goal, perhaps the dominant goal. They reason, often implicitly, that adherence to the rules of procedure is the essence of neutrality, fairness, and the proper role of a dispute resolving apparatus. At some level, usually subconscious, there is a post-modern philosophical aspect of this preference. Because humans cannot …

The Inevitability Of The Eclectic: Liberating Adr From Ideology, Jeffrey W. Stempel

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The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain …

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 1999 and 2000.

Protecting Franchisees From Abusive Arbitration Clauses, Jean R. Sternlight

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This article sets out a number of legal arguments that franchisees can potentially use to defeat arbitration clauses that seek to accomplish ends that would not be permissible in litigation. Drawing from decisions protecting consumers and employees from unfair arbitration clauses, as well as from opinions in the franchise context, this article analyzes arguments that can be based on the U.S. Constitution, federal statutes, state statutes, and common law. By way of this analysis, it suggests that some courts are misapplying arbitration precedents and preemption arguments to support decisions that allow franchisors to effectively exempt themselves from legislation and even …

Is Binding Arbitration A Form Of Adr?: An Argument That The Term "Adr" Has Begun To Outlive Its Usefulness, Jean R. Sternlight

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Professor Frank Sander has, for many years, been one of the most prescient commentators on the alternative dispute resolution ("ADR") movement. His 1976 Pound Conference speech has been identified by many as marking the birth of the modern ADR phenomena. That speech, which compared some of the pros and cons of litigation and an array of other dispute resolution processes, has been summarized as proposing the concept of the "multi-door courthouse." In contrast, Professor Sander's more recent and very interesting review of the present and future of ADR makes little attempt to distinguish between mediation and binding arbitration, the two …

The Tenth Amendment Among The Shadows: On Reading The Constitution In Plato's Cave, Jay S. Bybee

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In Plato's Allegory of the Cave, he describes a cavernous chamber in which men are imprisoned. Although a large fire lights the cave, the prisoners cannot see the light source. Instead, they can only make out figures that dance and parade in front of them illuminated by the fire. The prisoners cannot even see the figures directly, only their shadows. Everything that the prisoners know about reality they have learned from the distorted shapes of the shadows dancing about the cave's walls. Socrates wonders, if a prisoner were suddenly freed and could see the objects themselves and not merely their …

Supreme Court Of Nevada, Administrative Office Of The Courts, Nevada Domestic Violence Resource Manual, Mary E. Berkheiser

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No abstract provided.

Book Annotations, Leah Chan Grinvald

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No abstract provided.

Women Defenders On Television: Representing Suspects And The Racial Politics Of Retribution, Joan W. Howarth

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This Essay is about Ellenor Frutt, Annie Dornell, Joyce Davenport, and other women criminal defense attorneys of prime time television. It examines how high-stakes network television presents sympathetic stories about women working as criminal defense attorneys while simultaneously supporting the popular thirst for the harshest criminal penalties. Real women who choose to represent criminal defendants are fundamentally out of step with angry and unforgiving attitudes toward crime and criminals. Indeed, women defenders have chosen work that puts them in direct opposition to the widespread public willingness to incarcerate record numbers of Americans, often young African-American and Latino men, for longer …

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

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Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years …

Delaware Corporation Law And Transaction Cost Engineering, Charles R.T. O'Kelley

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I have a passionate belief that a very good way to teach Corporations is to structure the course around a core goal--to teach Delaware corporate law systematically--not just bits and pieces of it, but the entire system, much the way we approach the teaching of constitutional law. This Essay is an elaboration of my reasoning and strategies, organized as a presentation and discussion of the core rationales for organizing the course in this way. The first justification flows axiomatically from the following proposition: we create value for many of our students, and harm none, by giving them an opportunity to …

The Power Of The Treasury: Racial Discrimination, Public Policy And "Charity" In Contemporary Society, David A. Brennen

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The Treasury Department is empowered to enforce “established public policy” with respect to tax-exempt charities. Under this public policy power, the Treasury has revoked the tax-exempt charitable status of organizations that discriminated against blacks, organizations whose members engaged in civil disobedience against war, and organizations involved in illegal activity. The Treasury interprets its public policy power as applying to any activity that violates clear public policy. Thus, presumably, the Treasury could use this power to deny tax-exempt charitable status to an organization that engages in conduct that violates assisted suicide laws, anti-abortion laws, or other sufficiently “established” public policies.

The …

Foreword: The Many Passions Of Teaching Corporations, Charles R.T. O'Kelley

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This Symposium belies such skeptical views of the Corporations course and those of us who teach it. The 1999 Teaching Corporate Law Conference was organized around teachers' self-identified passions in teaching Corporations--the themes, insights, skills or puzzles about which they are most intrigued or enthused. Thirty-seven professors made presentations at the Conference; twenty-eight have converted their presentations into the essays in this Symposium edition, which have been grouped substantively rather than in the exact order presented at the Conference.

Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, And Freedom Of Speech, Michael L. Wells

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Mt. Healthy City School District Board of Education v. Doyle is among the most important, and least discussed, cases in constitutional tort law. It stands for the abstract principle that the "but-for" rule of causation, which is the usual test in common-law torts, applies in constitutional torts as well. Doyle, a nontenured school teacher, quarreled with another teacher, with school employees, and with students. Two specific incidents deserve mention. First, on one occasion he "made an obscene gesture to two girls in connection with their failure to obey commands made in his capacity as cafeteria supervisor." Second, after the principal …

Liability Issues Facing Online Businesses, David E. Shipley

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Online businesses are confronted by a wide variety of liability issues covering almost the full range of the standard law school curriculum. The liability problems that face a small business in Vidalia, Georgia, which is selling Vidalia onion products at specialty stores, through print advertising, and by mail, do not go away when the business starts marketing through a Web site. In fact, there might be more exposure doing business online, and there are variations depending upon the nature of the business in question. For example, as discussed below, an Internet Service Provider ("ISP") like America Online has worries that …