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Some Problems With Public Reason In John Rawls's Political Liberalism, Kent Greenawalt Jan 1995

Some Problems With Public Reason In John Rawls's Political Liberalism, Kent Greenawalt

Faculty Scholarship

Political Liberalism is a major addition to the political theory of John Rawls. In many respects, it develops or alters views expressed in his famous A Theory of Justice. For changes that appeared in various articles Rawls published after the earlier book, Political Liberalism tends to offer nuances of difference. The most original chapter is about public reason, and my comments are directed to that subject, which has now become a centerpiece of Rawls's theory. I draw in Rawls's other views only as they bear on public reason.

My aim is to present some problems I see with ...


An Open Letter To Congressman Gingrich, Bruce Ackerman, Akhil Amar, Jack Balkin, Susan Low Bloch, Philip Chase Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein, Harry Wellington Jan 1995

An Open Letter To Congressman Gingrich, Bruce Ackerman, Akhil Amar, Jack Balkin, Susan Low Bloch, Philip Chase Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein, Harry Wellington

Faculty Scholarship

We urge you to reconsider your proposal to amend the House Rules to require a three-fifths vote for enactment of laws that increase income taxes. This proposal violates the explicit intentions of the Framers. It is inconsistent with the Constitution's language and structure. It departs sharply from traditional congressional practice. It may generate constitutional litigation that will encourage Supreme Court intervention in an area best left to responsible congressional decision.

Unless the proposal is withdrawn now, it will serve as an unfortunate precedent for the proliferation of supermajority rules on a host of different subjects in the future. Over ...


Class Wars: The Dilemma Of The Mass Tort Class Action, John C. Coffee Jr. Jan 1995

Class Wars: The Dilemma Of The Mass Tort Class Action, John C. Coffee Jr.

Faculty Scholarship

Legal change – like organic evolution – can occur at varying paces. Long periods of gradual evolution are sometimes punctuated by brief moments of rapid, irregular change. Recent developments in class action practice bear witness to this phenomenon: during the 1990s, evolution has given way to mutation. At least with respect to mass torts, the development of the class action had been slow and halting. Well into the 1980s, federal courts uniformly resisted attempts to certify such mass tort class actions, largely out of concern that the interests of the individual litigant would be submerged within any large-scale proceeding. By the end ...


Parlor Game, Philip Chase Bobbitt Jan 1995

Parlor Game, Philip Chase Bobbitt

Faculty Scholarship

The Constitution is not perfect. Indeed I don't know what 'perfection' is in a constitution, since it is an instrument for human hands and thus must bear within its possibilities all the potential for misuse that comes with the user. What I am sure of is that 'perfection' does not mean 'never needs to be amended,' since one important part of the Constitution is its provision for amendment (although I am inclined to believe that few of the amendments to the U.S. constitution were actually necessary.)

That said, a competition to find the "stupidest provision of the Constitution ...


Imagery And Adjudication In The Criminal Law: The Relationship Between Images Of Criminal Defendants And Ideologies Of Criminal Law In Southern Antebellum And Modern Appellate Decisions, Bernard Harcourt Jan 1995

Imagery And Adjudication In The Criminal Law: The Relationship Between Images Of Criminal Defendants And Ideologies Of Criminal Law In Southern Antebellum And Modern Appellate Decisions, Bernard Harcourt

Faculty Scholarship

Criminal law opinions often project a distinct image of the accused. Sometimes, she is cast in a sympathetic light and may appear vulnerable or impressionable: a single mother, whose husband has died, struggling to raise her two, loving children; an impoverished, nineteen-year-old African-American with a fifth-grade education, "mentally dull and 'slow to learn;'" or a defenseless "obedient servant," protecting himself from an "adversary armed with a deadly weapon." On other occasions, the defendant may appear threatening, savage or even diabolical: a cold-blooded recidivist that escapes from a prison workcrew, brutally stabs, rapes and murders a woman, and returns for a ...


The Mythology Of Article 9, Robert E. Scott Jan 1995

The Mythology Of Article 9, Robert E. Scott

Faculty Scholarship

Debt Collection as Rent Seeking marks an important moment in contemporary jurisprudence: the transformation of David Carlson from trenchant, fire-in-the-belly, no-holds-barred critic to abstract-modeling, implausible-assuming, game-theorizing, law and economics maven. On that basis alone, it is a great read.


Business Lawyers And Value Creation For Clients, Ronald J. Gilson, Robert H. Mnookin Jan 1995

Business Lawyers And Value Creation For Clients, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

This Symposium marks an important milestone in legal scholarship and education: The spotlight falls on business lawyers for a change. Ten years ago, when one of us first wrote about what business lawyers really do, no one had devoted much attention to this part of the profession. In his broadside against lawyers, Derek Bok, then President of Harvard University and formerly dean of its law school, reserved his invective for litigators and the litigation process. Business lawyers captured the attention of very few critics; even on the unusual occasion when we were noticed, the criticism was at least funny. If ...


Parents As Fiduciaries, Elizabeth S. Scott, Robert E. Scott Jan 1995

Parents As Fiduciaries, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

Traditionally, the law has deferred to the rights of biological parents in regulating the parent-child relationship. More recently, as the emphasis of legal regulation has shifted to protecting children's interests, critics have targeted the traditional focus on parents' rights as impeding the goal of promoting children's welfare. Some contemporary scholars argue instead for a "child-centered perspective," in contrast to the current regime under which biological parents continue to have important legal interests in their relationship with their children. The underlying assumption of this claim is that the rights of parents and the interests of children often are conflicting ...


Dolan V. City Of Tigard: Constitutional Rights As Public Goods, Thomas W. Merrill Jan 1995

Dolan V. City Of Tigard: Constitutional Rights As Public Goods, Thomas W. Merrill

Faculty Scholarship

When may the government require that citizens waive their constitutional rights in order to obtain benefits the government has no obligation to provide them? The answer, given by the so-called "doctrine" of unconstitutional conditions, is that sometimes the government may condition discretionary benefits on the waiver of rights, and sometimes it may not. The Supreme Court has never offered a satisfactory rationale for this doctrine, or why it "roams about constitutional law like Banquo's ghost, invoked in some cases, but not in others."

The unconstitutional conditions doctrine directs courts not to enforce certain contracts that waive constitutional rights. Perhaps ...


Competition Versus Consolidation: The Significance Of Organizational Structure In Financial And Securities Regulation, John C. Coffee Jr. Jan 1995

Competition Versus Consolidation: The Significance Of Organizational Structure In Financial And Securities Regulation, John C. Coffee Jr.

Faculty Scholarship

It's as predictable as the swallows' return to Capistrano. At the outset of each new Administration, a Presidential Task Force proposes a restructuring of the federal administrative agencies. New developments in rapidly evolving markets, it is argued, require a consolidation of agencies to generate a broader perspective, to create a "level playing field," and to end the possibility of a "race to the bottom" (to the extent that market participants can opt for one regulatory system over another). The proposal draws little overt criticism, but turf-conscious agencies quietly mobilize their constituencies to oppose the reform. The first sign of ...


Thomas Jefferson, James Madison And The Role Of Interdisciplinary Studies, Robert E. Scott Jan 1995

Thomas Jefferson, James Madison And The Role Of Interdisciplinary Studies, Robert E. Scott

Faculty Scholarship

On behalf of the University of Virginia School of Law, it is my great pleasure to welcome all of you to the 1994 Federalist Society Symposium. This year's conference, the 13th Annual Student Symposium, focuses on Feminism, Sexual Distinctions, and the Law. This conference continues the admirable tradition of the Federalist Society, a tradition which emphasizes the unique role of law students in fostering a robust marketplace of ideas about law, and in maintaining the interdisciplinary focus of the modem university law school.

The coincidence of the Federalist Society Annual Conference's being held in Charlottesville leads inevitably to ...


Cooperating Clients, Daniel Richman Jan 1995

Cooperating Clients, Daniel Richman

Faculty Scholarship

Indicted on serious narcotics charges, Jose Lopez retained Barry Tarlow to “vigorously defend and try the case.” Tarlow was up to the task but warned Lopez that it was “his general policy not to represent clients in negotiations with the government concerning cooperation,” and that he did not plan to make any exception for Lopez. As Tarlow later explained, he found such negotiations “personally[,] morally and ethically offensive.” This arrangement suited Lopez just fine, until he wavered in his resolution. Encouraged by a co-defendant, worried about his children, and hoping to obtain an early release from prison in ...


Rights And Politics, Joseph Raz Jan 1995

Rights And Politics, Joseph Raz

Faculty Scholarship

It is an honour to join you today in celebrating Professor Jerome Hall. Professor Hall's work was ahead of its time. I did not know him, but his independence of mind and his spirited devotion to scholarship were striking in all I heard and read. Professor Hall's fame was at its height when I was beginning my research into the philosophy of law. And his name stood out as among the most distinguished American jurisprudential scholars. It stood out for his good sense, balanced judgment, and strong-minded convictions. His Foundations of Jurisprudence is thoroughly resistant to fashion. It ...


Integrating The "Underclass": Confronting America's Enduring Apartheid, Olatunde C.A. Johnson Jan 1995

Integrating The "Underclass": Confronting America's Enduring Apartheid, Olatunde C.A. Johnson

Faculty Scholarship

Douglas Massey and Nancy Denton's American Apartheid argues that housing integration has inappropriately disappeared from the national agenda and is critical to remedying the problems of the so-called "underclass." Reviewer Olati Johnson praises the authors' refusal to dichotomize race and class and the roles both play in creating and maintaining housing segregation. However, she argues, Massey and Denton fail to examine critically either the concept of the underclass or the integration ideology they espouse. Specifically, she contends, the authors fail to confront the limits of integration strategies in providing affordable housing or combating the problem of tokenism. Massey and ...


Liability-Based Fee-Shifting Rules And Settlement Mechanisms Under Incomplete Information, Eric Talley Jan 1995

Liability-Based Fee-Shifting Rules And Settlement Mechanisms Under Incomplete Information, Eric Talley

Faculty Scholarship

Recent years have seen a debate over litigation reform grow increasingly agitated. Attorneys, judges, academics, and politicians now readily and regularly disagree about how or whether to combat the debilitating litigiousness commonly purported to infect the American Bar. Within this debate, few reform proposals have received as much attention as "fee-shifting" provisions, which, in their most popular incarnation, reallocate litigation costs (particularly attorney's fees) based on the outcome of the liability phase of a trial. This attention is perhaps justified, given the nonuniformity of such rules among industrialized nations. For instance, in the British Commonwealth and much of Continental ...


Linguistic Indeterminacy And The Rule Of Law: On The Perils Of Misunderstanding Wittgenstein, Christian Zapf, Eben Moglen Jan 1995

Linguistic Indeterminacy And The Rule Of Law: On The Perils Of Misunderstanding Wittgenstein, Christian Zapf, Eben Moglen

Faculty Scholarship

The central article of faith of the traditional understanding of the Rule of Law is that precedent uniquely determines the outcome of legal cases. Skepticism about that faith, however, is widespread. Critical Legal Scholars, as well as their intellectual ancestors, the Legal Realists, have frequently attacked the legitimacy of the received model and the formalist view of the relationship between the law and its individual applications that underlies the model. The common aim of these attacks is to demonstrate that the law is indeterminate in outcome and that the supposed constraints of the Rule of Law on judges are fictions.


Holmes's Legacy And The New Constitutional History, Eben Moglen Jan 1995

Holmes's Legacy And The New Constitutional History, Eben Moglen

Faculty Scholarship

The most significant collaborative effort in the literature of American constitutional history, the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, is nearing completion. A generation has passed since the appearance of the first volume, authored by Julius Goebel, Jr., and (after many vicissitudes affecting several of the works in the series) the appearance of this volume marks the antepenultimate stage. Though Professor Fiss's remarkable achievement deserves to be viewed primarily on the basis of its own merits as a study of the Fuller Court, a just appreciation of its contribution to the literature ...


Distinguishing Between Consensual And Nonconsensual Advantages Of Liability Rules, Ian Ayres, Eric Talley Jan 1995

Distinguishing Between Consensual And Nonconsensual Advantages Of Liability Rules, Ian Ayres, Eric Talley

Faculty Scholarship

Louis Kaplow and Steven Shavell's thoughtful reply to our recent article contains powerful insights about the relative efficiency of liability and property rules. While we are in agreement that liability rules can be more efficient than property rules when transaction costs are low, we disagree about the cause of this liability-rule advantage. Kaplow and Shaveli believe that liability rules hold only a nonconsensual advantage over property rules (i.e., liability rules tend to induce efficient nonconsensual takings). While granting this oftrecognized nonconsensual advantage, we contend that liability rules may also have a consensual advantage in low-transaction-cost settings (i.e ...


Reflections On A Case (Of Motherhood), Jane M. Spinak Jan 1995

Reflections On A Case (Of Motherhood), Jane M. Spinak

Faculty Scholarship

She surveyed my office for signs of conspiracy. We had had two or three telephone conversations that had conveyed my ambivalence about representing her. A former colleague had urged her to call the clinic for help but I was reluctant to accept her case for the clinic: we rarely represented foster parents and the procedural complexity of the case convinced me that I would be unable to assign students to represent this client so late in the semester. I was resigned, however, to help her find a lawyer, both because a former colleague had sent her and because the snippets ...


Political Correctness In Jury Selection, George P. Fletcher Jan 1995

Political Correctness In Jury Selection, George P. Fletcher

Faculty Scholarship

The values of equality and freedom are in constant tension, or so some think. The more society stresses equality, the less freedom people have. For example, Bruce Ackerman would abolish inheritance in his utopian society to insure that every generation begins on an equal footing. Many commentators have advocated restrictions on pornography and hate speech in order to protect the likely targets of these traditionally protected uses of free speech. Additionally, Catharine MacKinnon has invoked the principle of equality in the form of protecting disempowered minorities to argue for a restriction on liberty and freedom. Conversely, the more economic freedom ...


Race And Representation After Miller V. Johnson, Richard Briffault Jan 1995

Race And Representation After Miller V. Johnson, Richard Briffault

Faculty Scholarship

This Article considers the Supreme Court's two approaches to race and representation: the constrained proportionality of the vote-dilution cases and the strict scrutiny of racially motivated districting. Part I traces the development of these two doctrines, examines their conceptual underpinnings, and considers some of the questions the Court will have to answer as it elaborates its new approach to the use of race in the design of electoral systems.

Part II explores the tension between the Court's two approaches. The concern with racial motivation proceeds from an underlying normative assumption about the place of race in politics that ...


The World Trade Organization's Agreement On Government Procurement: Expanding Disciplines, Declining Membership?, Bernard Hoekman, Petros C. Mavroidis Jan 1995

The World Trade Organization's Agreement On Government Procurement: Expanding Disciplines, Declining Membership?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

The Agreement on Government Procurement (GPA) – originally negotiated during the Tokyo Round – was renegotiated for the second time during the Uruguay Round. It is one of the WTO's so-called Plurilateral Agreements, in that its disciplines apply only to those WTO Members that have signed it. In contrast to most of the other Tokyo Round codes – e.g., the agreements on technical barriers to trade (standards), import licensing, customs valuation, subsidies, and antidumping – the GPA could not be 'multilateralized'. With the reintroduction of agriculture and textiles and clothing into the GATT, procurement has therefore become the major 'hole' in the ...


Paint-By-Numbers Tax Lawmaking, Michael J. Graetz Jan 1995

Paint-By-Numbers Tax Lawmaking, Michael J. Graetz

Faculty Scholarship

Although their meaning and contours have long been controversial, the general criteria for evaluating changes in tax law enjoy both stability and consensus. At least since Adam Smith, there has been virtually universal agreement that the nation's tax law should be fair, economically efficient, and simple to comply with and to administer. Tax law changes should be designed to make the law more equitable, easier to comply with, more conducive to economic growth, and less likely to interfere with private economic decisionmaking.

Precisely what these criteria imply for policymaking is controversial, however. Fairness is often said to require that ...


Law And Labor In The New Global Economy: Through The Lens Of United States Federalism, Mark Barenberg Jan 1995

Law And Labor In The New Global Economy: Through The Lens Of United States Federalism, Mark Barenberg

Faculty Scholarship

The heightened economic globalization of the last quarter century presents a welter of new questions for legal scholars, policymakers, and practitioners. In many specialized fields, lawyers and academics are reskilling in comparative and international law in response to the growing importance of the transnational linkages and competition facing economic and regulatory actors in the United States. Concurrently, dramatic economic and political "transitions" in Asia, Latin America, and Eastern Europe have created legal uncertainties and innovations that compound the challenges of transnationalization. Issues of labor and employment law are at the center of both of these epochal transformations – globalization and regime-transition ...


Putting Cars On The "Information Superhighway": Authors, Exploiters, And Copyright In Cyberspace, Jane C. Ginsburg Jan 1995

Putting Cars On The "Information Superhighway": Authors, Exploiters, And Copyright In Cyberspace, Jane C. Ginsburg

Faculty Scholarship

The advent of the "Information Superhighway" has sparked much speculation about the roles of authorship, of readership, and of literary property in the vast system of interlinked computer networks that has come to be known as "cyberspace." Through computers linked to a digital network, users can access and add to vast quantities of material. At least in theory, every computer user can become his, or her own publisher, and every terminal can become a library, bookstore, or audio and video jukebox.

The prospect of pervasive audience access to and ability to copy and further disseminate works of authorship challenges the ...


Bankruptcy And The Entitlements Of The Government: Whose Money Is It Anyway?, Ronald J. Mann Jan 1995

Bankruptcy And The Entitlements Of The Government: Whose Money Is It Anyway?, Ronald J. Mann

Faculty Scholarship

A debate between two groups of scholars has dominated bankruptcy scholarship for the past decade. The first group, often referred to as the creditors' bargain theorists, argues that creditors' agreements with debtors create entitlements to payment the proper role of the bankruptcy system, therefore should be to benefit creditors by enforcing rules to which creditors would have agreed before bankruptcy. The second group of scholars contends that the goals of the bankruptcy system should not be limited to the interests of creditors. Instead, they maintain that the bankruptcy system, as a part of our country's wider system of social ...


Rediscovering Client Decisionmaking: The Impact Of Role-Playing, Mary Zulack Jan 1995

Rediscovering Client Decisionmaking: The Impact Of Role-Playing, Mary Zulack

Faculty Scholarship

There are more things of importance to representing clients than are disclosed through a typical interview or counseling session, even a session undertaken by a lawyer earnestly attempting to hear rather than ignore the client. We lawyers are often vividly aware, when we pause to contemplate the point, that we do not know all we should about our clients. We may also believe that we have great gulfs of knowledge and experience to cross in order to hear and understand any particular client. Further, we fear that our ability to cross these gulfs is limited by the human, and lawyerly ...


Corruption Of The Class Action: The New Technology Of Collusion, John C. Coffee Jr. Jan 1995

Corruption Of The Class Action: The New Technology Of Collusion, John C. Coffee Jr.

Faculty Scholarship

Professor Coffee's article, an oral version of which was given at the Cornell Mass Torts conference, is appearing in the Columbia Law Review. However, because commentators in this volume have responded to it, he has authorized the following summary of his views.


The Profession Of Law: Columbia Law School's Use Of Experiential Learning Techniques To Teach Professional Responsibility, Carol B. Liebman Jan 1995

The Profession Of Law: Columbia Law School's Use Of Experiential Learning Techniques To Teach Professional Responsibility, Carol B. Liebman

Faculty Scholarship

Columbia Law School's ethics course, "The Profession of Law" ("POL"), is an interactive, experiential exploration of lawyer ethics. The course, required for all third-year students, is taught on an intensive basis during the first week of the fall semester. It begins on Monday morning, the first day of the semester, and runs through mid-afternoon on the following Friday. The course has five goals: to introduce students to the rules that govern professional conduct; to help them develop an analytic framework for making ethical decisions in those broad areas where the rules do not give clear answers; to provoke them ...


Lani Guinier And The Dilemmas Of American Democracy, Richard Briffault Jan 1995

Lani Guinier And The Dilemmas Of American Democracy, Richard Briffault

Faculty Scholarship

Lani Guinier, an experienced voting rights litigator and a professor of law at the University of Pennsylvania Law School, first came to national attention in the spring of 1993 when President Clinton nominated her to be assistant attorney general for civil rights. Labelled a "quota queen" by the Wall Street Journal, Guinier became the target of a fervent campaign to block her nomination. For several weeks, Guinier's law review articles on voting rights were the focus of a fierce national debate. Politicians and pundits expounded on her publications and spread snippets from her scholarship across the front pages and ...