Law Commons^™

Foreword: A New Journal Of Color In A "Colorblind" World, Frank Rudy Cooper, Jerome Mccristal Culp Jr, Lovita Tandy

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In this foreword for the inaugural issue of the African-American Law & Policy Report (ALPR), Professor Frank Rudy Cooper and his colleagues present articles, which contribute to the debate that this premier issue presents: an important discussion about race that majoritarian concerns impede. The majoritarian story basically states that race is not important or race can only be examined in a "colorblind" way or that race can only be considered if we do not upset the existing power arrangements that keep African Americans and other racial groups in their place. This journal is important to ventilate those concerns because the …

Two Cheers For Specialization, Jeffrey W. Stempel

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Professor Dreyfuss adopts what might be termed the more conservative and deferential view of the efficacy of Delaware corporate law in her paper and her presentation. This approach generally views the market as making a statement with which one should not lightly quarrel. Because Delaware continues to attract incorporations, this view posits that the state's attraction is the superiority of its corporate law compared to other states, which lack a semi-specialized Chancery Court. Consequently, in a race to the top of corporate standards, legal rules and adjudications, Delaware's success in the market suggests that Delaware's legal product is good.

Other …

The Brown Symposium – An Introduction, Thomas B. Mcaffee

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This article is an introduction to a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education.

The Lawyer's Dirty Hands, Leslie C. Griffin

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No abstract provided.

Organ Retrieval From Anencephalic Infants: Understanding The Ama’S Recommendations, David Orentlicher

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No abstract provided.

First And Last Chance: Looking For Lesbians In California's Fifties Bar Cases, Joan W. Howarth

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Do all of us who choose members of our own sex as objects of desire and as sexual partners share some meaningful common identity, such as “homosexual,” “gay” or perhaps “queer”? The classifications “homosexual” and “gay” claim for themselves just that kind of inclusiveness; that is, that the gay world includes people of all races, all classes and any possible gender identity. You, me, James Baldwin, Gertrude Stein, J. Edgar Hoover: we are all gay together. In this way “homosexual” or “gay” is a generic term, like, for example, “human being.” But we know that the alleged inclusiveness masks just …

Desperately Seeking Science, Francis J. Mootz Iii

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In this commentary I offer a lawyer’s view of what law and linguistics interdisciplinary studies might mean for legal practice, as well as a legal theorist’s view of what importance they may hold for jurisprudence. I do not pretend to have more than cursory knowledge about linguistics, and so my remarks about what linguistics scholars might gain from an interdisciplinary exchange necessarily will be brief general.

Seeing The Forest And The Trees: The Proper Role Of The Bankruptcy Attorney, Nancy B. Rapoport

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This article discusses the tension between the lawyer's duty to her client and her duty to the legal system as an officer of the court. It concludes that, in a situation in which those two duties conflict, the lawyer's duty to the system as a whole should trump the duty to the client.

Interpreting Insurance Policies, Jeffrey W. Stempel

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Like any other contract, an insurance policy may become the subject of a legal dispute. When disputes arise over insurance coverage, lawyers must combine their skill in contract interpretation with their knowledge of insurance law, bringing both to bear on the special problems related to this type of contract. Each dispute has unique traits, but a few basic ground rules of contract law and insurance law can help you interpret insurance policies and resolve disputes over insurance coverage.

Democratic Responses To International Terrorism, Christopher L. Blakesley

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This volume provides a multidisciplinary study of terrorism. The editor notes at the outset the difficulty of definition: "Terrorism is not a one-dimensional problem; it transcends many frontiers: political, jurisdictional, institutional, disciplinary and methodological. So approaching the problem from only one perspective may lead to only partial understanding and an incomplete strategy for developing constructive responses” (p. 3). Note the tendency of even this careful statement to assume that terrorism is always committed by others, Also, although legal definition and consideration may be implied by the terms polical, jurisdictional, institutional and disciplinary, which are indicated as various dimensions of …

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

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In 1993 Congress enacted the Religious Freedom Restoration Act (“RFRA”), which provided that government, including the United States and the states, “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” except where the government can demonstrate that the burden furthers “a compelling governmental interest” and is “the least restrictive means of furthering that interest.”

Unfortunately, whatever consistency RFRA might bring to the substance of church-state relations comes at the expense of clarity in federal-state relations. This is unfortunate because the First Amendment does not address church-state relations; it concerns …

The Separate Tax Status Of Loan-Out Corporations, Mary Lafrance

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When professionals and other persons who offer their goods and/or services to the public conduct their businesses through corporations, the Treasury has acknowledged that for federal income tax purposes it must treat those corporations as separate and distinct from their controlling shareholder-employees, even where there is only a single shareholder-employee, provided that the corporation has a business purpose and the taxpayer consistently respects the corporate form. However, the Treasury has refused to accord equal dignity to incorporated workers who offer their services not to the public at large but to a single recipient or a small number of recipients. The …

Days Of Our Lives: The Impact Of Section 197 On The Depreciation Of Copyrights, Patents And Related Property, Mary Lafrance

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For federal income tax purposes, owners of intangible property generally must capitalize the costs of creating or acquiring that property. In the past, the tax rules for recovering these capitalized costs through depreciation deductions varied greatly according to the nature of the intangible. Certain types of acquired intangibles--notably, goodwill and going concern value--were nondepreciable. In contrast, taxpayers purchasing interests in copyrights or patents could depreciate those assets under the straight-line method or, in most cases, could opt for more rapid cost recovery under the income forecast method.

In the Omnibus Budget Reconciliation Act of 1993, Congress greatly enlarged the class …

Substance Above All: The Utopian Vision Of Modern Natural Law Constitutionalists, Thomas B. Mcaffee

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Modern natural law constitutionalists assert that the Constitution, properly understood, includes a kind of general trump card in the form of a moral reality which provides (or is, at any rate, thought to provide) a measure of all positive legal acts--whether framed in terms of the values of natural equality, natural rights, or “simple justice.”

This article explores why “trump card” natural law constitutionalism cannot by its nature adequately confront crucial issues of institutional design and democratic theory. In thus putting questions of moral substance ahead of crucial issues of authority, natural law constitutionalism appears to rest on a naive, …

Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee

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This article is part of a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education. In this article, the author addresses the question of what opinion he would have written had he been a justice on the U.S. Supreme Court when the case was decided.

The author indicates he would have concurred in those opinions finding a violation of the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education. The author finds persuasive the argument that any other decision would permit states to evade the core purpose of the Fourteenth Amendment. Nevertheless, …

Comment, The Augustan Constitution And Our Natural Rights Tradition: Is There A Conflict?, Thomas B. Mcaffee

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Professor Hoffheimer has provided us with a striking picture of two important strands of our constitutional heritage. The first, which he labels “Augustan constitutionalism,” descended from classical political thought and the English constitution. Its focus is on the governmental powers that it legitimates, and its themes relate to the forms of government; in the American context, this means that its focus is on separation of powers, checks and balances, and (in general) the problem of organizing and dividing government authority. The second, which he calls the “natural rights tradition,” roots government's legitimacy--and indeed its origin and purpose--in the protection of …

Critical Race Theory And Proposition 187: The Racial Politics Of Immigration Law, Ruben J. Garcia

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Immigration law and politics have been historically intertwined with racial prejudice. Many of those who have called for immigration restrictions have also sought an end to the racial and cultural diversity brought by immigrants. With the end of legally sanctioned race discrimination in the 1960s, immigration rhetoric has lost some of its overt racist overtones. However, in the 1990s, many politicians and lawmakers have emphasized the difference between “legal” and “illegal” immigration. This change begs a central question: Have the racist motivations of past immigration law and policy been completely displaced by a concern for law and order? This Comment …