Law Commons^™

Harry Edward's Nostalgia, Paul D. Reingold

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Until fairly recently, the work of people who thought and wrote about the law in its broadest cultural sense, and the work of those who thought and wrote about the law as it was practiced, did not intersect very much. The broad cultural issues tended to be the province of philosophers or political theorists or other academic social critics, while traditional legal scholarship - as it appeared in law school journals - remained firmly rooted in lawyers' questions. This is not to suggest that legal academics wrote nothing but practice manuals, but it is true that until the last twenty …

Property And Pragmatism: A Critique Of Radin's Theory Of Property And Personhood, Stephen J. Schnably

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No abstract provided.

State-Interest Analysis And The Channelling Function In Family Law, Carl E. Schneider

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I want to develop some themes I advanced in my article entitled State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social issues. In that article I noted that while courts and commentators have lavished effort on the fundamental-rights side of privacy law, they have scanted the state-interest side, thereby producing crucial weaknesses in that law. I felt that state~interest discussions in privacy cases often seemed to me unsatisfying. This is an attempt to see why. A major difficulty is that states tend to advance and courts tend to accept quite narrow specifications of a statute's …

Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman

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In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …

Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman

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David Schum has long been one of our keenest commentators on questions of inference and proof. He has been particularly interested in, and illuminating on, the subject of "cascaded," or multi-step, inference.' This is a subject of importance to lawyers, because most evidence at trial can be analyzed in terms of cascaded inference. Usually, the proposition that the fact finder2 might immediately infer from the evidence is not itself an element of a crime, claim, or defense. Most often, an extra inference would be required to jump from that proposition to a proposition that the law deems material. Thus, inference …

Enforcement Of Foreign Money-Judgments In The United States: In Search Of Uniformity And International Acceptance, Ronald A. Brand

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When international trade and investment increase, so does the need for satisfactory means of dispute resolution. Dispute resolution in national courts requires that litigants consider not only the likelihood of a favorable judgment but also the ability to collect on that judgment. In cases where the defendant’s assets lie in another jurisdiction, collection is possible only if the second jurisdiction will recognize the first jurisdiction’s judgment.

In the international arena, enforcement of United State judgments overseas is often possible only if the United States court rendering the judgment would enforce a similar decision of the foreign enforcing court. This reciprocity …

Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman

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In this article, I propose two changes in the way hearsay issues are usually resolved. First, in some circumstances courts should divide the burdens of producing the declarant-for example, by imposing the physical burden on the proponent and the financial burden on the opponent. Second, no matter how the declarant is produced as a witness, she should ordinarily testify as part of the proponent's case, subject to cross-examination by the opponent. If the declarant does become a witness, the admissibility of her out-of-court statement should not be resolved until her current testimony about the underlying events is received.

Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining

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he connection between authority and responsibility is such that the one cannot be thought of without the other. In legal method, close reading and rereading of a text marks it as an authoritative text; the presupposition of mind which is necessary to close reading is presupposition of a responsible mind. In the working of institutions that embody authority, the disposition to follow the decisions and statements of a person responsible for a matter inevitably rests upon a presupposition that the decisions and statements followed are those of the responsible person. As that presupposition fades with bureaucratization of decision and writing, …

Stalking The Squeeze: Understanding Commodities Market Manipulation, Richard D. Friedman

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This article addresses the perplexing and important problem of how to distinguish valid, large-scale trading activity from a squeeze. Part I analyzes and reformulates what I will call the price-impact test, according to which manipulation is conduct motivated by its impact on price. This test, I contend, states a necessary but not sufficient condition for characterizing conduct as a squeeze. Part II offers a substantially different test, which I call the modified-sanctions approach. Under this approach, the price-impact test is used as a preliminary safe-harbor standard. The modified-sanctions approach goes further, however, recognizing that the essence of a squeeze is …

Some Implications Of Cognitive Psychology For Risk Regulation, Roger G. Noll, James E. Krier

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Beginning with a set of books and articles published in the 1950s, cognitive psychologists have developed a new descriptive theory of how people make decisions under conditions of risk and uncertainty. A dominant theme in the theory is that most people do not evaluate risky circumstances in the manner assumed by conventional decision theory-they do not, that is, seek to maximize the expected value of some function when selecting among actions with uncertain outcomes. The purpose of this article is to consider some implications of the cognitive theory for regulatory policies designed to control risks to life, health, and the …

Generalization In Interpretive Theory, Joseph Vining

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There are arguments at large about the nature of legal interpretation, proceeding from an implicit proposition that interpretation is the same phenomenon or experience whatever its setting. An assumption that there is one phenomenon can be found in discussions among lawyers of interpretation and in discussions among nonlawyers of legal interpretation-and as often in the work of those who would deny there is any significance to theorizing about interpretation, as of those who think persuasion to a particular theory will have the utmost consequence for law and society. Proceeding from such a proposition, rather than toward it, raises the risk …

Risk And Design, James E. Krier

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Risk springs from uncertainty,' uncertainty invites error, and, since error can be costly, we would prefer to avoid it (provided, of course, that avoidance is not more costly yet). While there is much in the Noll and Krier article2 about judgmental error under conditions of risk and uncertainty, there is little about ways to avoid it. So avoidance-more accurately, minimization-of error costs is the topic I want to address very briefly and partially here.

Risk, Courts, And Agencies, Clayton P. Gillette, James E. Krier

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Public risks are precisely the risks that have recently captured the attention of the legal community and the world at large, in no small part because they give rise to such novel problems for lawyers and such grave apprehensions among lay people. Public risks have moved the legal system to relax doctrines--regarding, for example, standards of causation and culpability, burdens of proof, sharing of liability--that were designed to deal with the private risks that once dominated the landscape. And public risks have moved lay people to intensify their demands for risk control measures. These developments suggest that public risks are …

A Skeptical Look At Contemporary Republicanism, Terrance Sandalow

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A growing number of scholars have been led by that impulse to an interest in 'the republican tradition," arguing that it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible. Republicanism is a mansion with many rooms, and its modem interpreters emphasize varying possibilities within it, but common to all is the vision of a politics that recognizes and seeks to strengthen the social bonds within a political community. Within the limits set by that vision differences abound, just as differences exist among liberals concerning appropriate political foundations for individual freedom. …

Promise Fulfilled And Principle Betrayed, James J. White

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My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …

The Un-Easy Case For Technological Optimism, James E. Krier, Clayton P. Gillette

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"Technological optimism" is a term of art, an article of faith, and a theory of politics. It is a view that pervades modem attitudes, yet gets little explicit attention. For a brief period the situation was otherwise. In the early 1970s, the optimistic outlook figured prominently in an important debate about nothing less than the future of the world. Technological optimism won. The outcome was unsurprising, given the nature of the argument. On one side of the debate was a group of self-proclaimed Malthusians who foresaw an impending period of stark scarcity unless relatively drastic remedial steps were quickly taken; …

Legal Theory And The Obligation To Obey, Philip E. Soper

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Contributions to this symposium will undoubtedly share, with other recent discussions of the issue, the assumption that one does not need to decide what law is before deciding whether there is an obligation to obey it. More precisely, the assumption seems to be that our ordinary, pre-analytic understanding of "law" provides a completely adequate base for discussions about law's moral authority. The more refined disputes about the nature of law that dominate analytical jurisprudence can thus be ignored.

Suicide And The Failure Of Modern Moral Theory, Donald H. Regan

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The question I want to address is when and why suicide is morally wrong. There is something peculiar in my writing on this question at all. It will soon become apparent that although I think suicide involves genuine moral issues. I also think that the moral problem of suicide is a problem which most people answer correctly. That is, I think that in the vast majority of cases where people ought not to commit suicide, they do not. They are not even tempted. Conversely, most people who do commit suicide, or who want to, are either justified or at least …

Justice And The Bureaucratization Of Appellate Courts, Joseph Vining

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The author notes the growing bureaucratization of appellate justice in the United States and, in particular, the drafting of opinions by law clerks rather than by judges. Taking the Supreme Court of the United States as an example, and comparing its internal procedure with that of large administrative agencies, he questions whether the method of analysis familiarly used by lawyers to arrive at an authoritative statement of law is applicable to legal texts bureaucratically produced. He suggests that legal method and its presuppositions are ultimately associated with the authority of law, and concludes that there may be critical losses not …

Constitutional Interpretation, Terrance Sandalow

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"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …

Legal Problems Of Dividing A State Between Federal Judicial Circuits, Arthur D. Hellman

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At recent hearings on proposals to restructure the Ninth Circuit Court of Appeals, two witnesses (a Ninth Circuit judge and a law professor) expressed some support for a realignment that would divide the state of California between two judicial circuits. This article explores the legal problems that might arise if such a reorganization were to be enacted, and it considers how those problems might be dealt with. It concludes that the problems are far from intractable and that they can be addressed through use or adaptation of familiar mechanisms for avoiding or resolving conflicts between decisions of different courts.

Almost …

Political Surveillance And The Fourth Amendment, Alan Meisel

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The United States District Court case has left the scope of the warrant protection of the fourth amendment considerably clearer and broader. The door left ajar in Katz has been firmly fastened shut by the Court leaving only the traditional exceptions to the warrant requirement, which are based upon practical necessity, and the still unconfronted question of the power of the executive to conduct warrantless surveillances of foreign agents in national security cases." It is also clear that courts are no less competent to evaluate the appropriateness of a search and seizure in an internal security case than in a …

How To Use, Abuse—And Fight Back With—Crime Statistics, Yale Kamisar

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Statistics have an almost magical appeal in a "fact"-minded culture such as ours, among a people conditioned and accustomed to watch for-and attach great significance to-even the smallest fluctuations in say, the unemployment rate. Hence, as Darrell Huff graphically demonstrated in his famous little book, How to Lie with Statistics (1954), they can be-and have been-manipulated to terrorize or calm, inflate or depreciate, and above all, to sensationalize and over simplify. As Harvard criminologist Lloyd Ohlin noted recently, statistics are especially potent when "they give a sense of solid reality (usually false) to something people vaguely apprehend and when they …

The Problem Of Social Cost Revisited, Donald H. Regan

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SOME years ago, in a paper entitled "The Problem of Social Cost," Professor Ronald Coase asserted and argued for a proposition which has since acquired the convenient sobriquet "the Coase Theorem." The proposition is: That in a world of perfect competition, perfect information, and zero transaction costs, the allocation of resources in the economy will be efficient and will be unaffected by legal rules regarding the initial impact of costs resulting from externalities. Note that there are two claims being made, which it is well to separate for purposes of discussion. The first claim is that, under the conditions described, …

Cooperation Between The Bar And The Public In Improving The Administration Of Justice, Edson R. Sunderland

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Professor Sunderland compares public participation in the legal systems of the United States and Great Britain. "There must be a partnership between the profession and the laity for improving the administration of justice. Law must become a matter of public concern, and not treated as a mere perquisite of a professional class."