Law Commons^™

Against Evaluator Relativity: A Response To Sen, Donald H. Regan

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In a recent essay in this journal Amartya Sen introduced the notion of an evaluator-relative consequence-based morality. The basic idea can be described very simply. A consequence-based morality is a morality that instructs each agent to maximize some objective function defined over states of affairs. Such a morality is evaluator neutral if it assigns to every agent the same objective function. If different agents have different objective functions, then the morality is evaluator relative. For example, a morality would be evaluator relative if it assigned to Jones an objective function giving greater weight to the welfare of Jones's children than …

The Recent Erosion Of The Secured Creditor's Rights Through Cases, Rules And Statutory Changes In Bankruptcy Law, James J. White

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One can view the law of creditors' rights as a series of cyclesin which alternatively the rights of the creditor and then those of the debtor are in ascendancy. Looking back through Americanlegislative history, one sees both the state legislatures and the Congress intervening on behalf of debtors in a variety of ways onmany occasions. An early example of such intervention was the enactment, particularly in the Midwest and West, of generous exemption laws that removed a variety of property beyond the reach of general creditors. A second example is the enactment of usury laws, which continue to be a …

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 …

Statistics In Litigation: A Selective Bibliography, Michael G. Chiorazzi

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Act Of State And Other Problems With Restatement Ii (Revised), Malvina Halberstam

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The Natural Law Of Administrative Law, William H. Rodgers, Jr.

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Law teachers and researchers are inveterate seekers of metaphors. The metaphor, even if glib and obvious, invariably suggests further parallels and relationships, the conjoinder of phenomena. This is the road to uncovering unsuspected linkages and building simple descriptive models.

Theory building, in administrative law as elsewhere, begins with the capture and expression of the convincing metaphor. Extracting metaphors from the natural sciences to account for social happenings begins with a figure of speech and often ends there. Legislatures now are squeezing fat out of administrative agencies, an apt biological picture of a weight watcher's rigor being imposed on flabby, middle-aged …

The New Deal Regulatory Model: A History Of Criticisms And Refinements, Daniel J. Gifford

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When the Roosevelt administration took office in March 1933, the nation was suffering from the onslaught of the Great Depression. The complex set of economic and regulatory policies constituting President Franklin Roosevelt's "New Deal" focused primarily on restoring health to the economy and secondarily on achieving a modicum of income redistribution. The Roosevelt administration, however, possessed neither a clear understanding of the causes of the Depression, nor a coherent, stable, and workable scheme for ending it. Nevertheless, that administration's tenure produced widespread federal economic regulation and brought ferment, imagination, and creativity to theoretical and practical regulatory techniques.

The Derivative And Discretionary-Function Immunities Of Presidential And Congressional Aides In Constitutional Tort Actions, Kathryn D. Sowle

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The Persistence Of Classical Style, Patrick O. Gudridge

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Extraordinary Writ Practice In Criminal Cases: Analogies For The Military Courts, Edward H. Cooper

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Extraordinary writs have two central functions in the hands of appellate courts. One is to enforce the court's mandate; there is no particular difficulty with this use of the writs, and no more need be said about it. The other function is to circumvent the ordinary channels of appellate review. In this function, writs operate as appeals in all but name. As this use has become more and more routine, it would be more appropriate to speak of them as "appeals writs" rather than extraordinary writs. My assignment is to speak of the experience with appeals writs in criminal cases …

The Ethics Of Argument: Plato's Gorgias And The Modern Lawyer, James Boyd White

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In what follows I shall analyze Plato's text and do my best to suggest a response to it. But I should say at the outset that for the modern lawyer and law teacher this is not merely an academic exercise, for we in fact are rhetoricians very much as Plato defines them. What is at stake for us in reading this dialogue is what it means to have devoted ourselves to the set of social and intellectual practices that define the profession of law. We have a special relation to this text, for we can in the full Platonic sense …

Book Review (Reviewing G. Edward White, Earl Warren: A Public Life (1982)), Philip B. Kurland

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The Coming Curtailment Of Compulsory Child Support, David L. Chambers

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Absent parents ought to contribute to the support of their minor children and states can appropriately invoke the force of law to compel them to do so. Stated so generally, even absent parents behind in their payments would probably agree. Since so many others agree as well, and since the numbers of single-parent children have mushroomed, systems of governmentally compelled support in this country have grown enormously. By the early part of the next century, if current laws remain in force and current population trends continue, most of America's children on any given day will be entitled to support from …

How Judges Speak: Some Lessons On Adjudication In Billy Budd, Sailor With An Application To Justice Rehnquist, Richard H. Weisberg

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The article examines how authority figures use language and procedural structures to shape outcomes in both literary and legal contexts, highlighting the tension between formal legal processes and true justice. Through a comparative analysis of Herman Melville's Billy Budd, Sailor and the Supreme Court case Paul v. Davis, the article argues that "considerate communication"—a subtle form of manipulation—can distort reality and undermine fairness in adjudication. It critiques legal systems that prioritize formality over substance, emphasizing how narrative techniques and rhetorical strategies in both literature and law can mask subjective biases and influence decisions.

Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam

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This article compares the Court's reasoning in plea bargaining cases with its reasoning in non-plea-bargaining cases that involve the same legal principles. It analyzes the Court's arguments for sustaining guilty pleas induced by fear of the death penalty or by promises of leniency, and for sanctioning the imposition of harsher penalties on those who reject prosecutional offers to plead and insist on a trial. Finally, it briefly addresses the contention that the system for the administration of criminal justice in the United States could not function if use of a sentencing differential to induce guilty pleas were prohibited.

The Social Consequences Of Common Law Rules, Richard A. Epstein

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In the past decade, commentators applying both economic and historical methods to the study of the classical common law have explicitly or implicitly made sweeping claims for the system's ability to allocate or redistribute substantial shares of wealth. In this Article, Professor Epstein challenges the assumption that the fundamental doctrines of the common law can have a decisive effect on the flow of resources in society. He calls attention to the constraints placed upon the system by the generality of its rules, the prospectively indeterminate alignment of economically interested parties, the expenses of adjudication, and the divergent social beliefs of …

The Corporate Governance Movement, Daniel R. Fischel

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In the past decade a number of commentators have argued that corporations have failed to meet their responsibilities to shareholders and the public. To remedy this perceived failure, these commentators have advocated a variety of corporate governance proposals. In this Article Professor Fischel challenges the notion that any problem exists in the current mode of corporate governance. He contends that reformers have wrongly assumed the existence of a "problem" because of their failure to understand the economic theory underlying the corporate form of firm organization. Professor Fischel argues further that no empirical evidence exists to support the contentions of advocates …

Book Review (Reviewing Michael E. Parrish, Felix Frankfurter And His Times: The Reform Years (1982)), Philip B. Kurland

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A W. Howard Mann: An Appreciation Tribute To W. Howard Man, Philip B. Kurland

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Advances And Altered Perspectives In English Legal History, Richard H. Helmholz

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Is There A Ratchet In Antitrust Law?, Frank H. Easterbrook

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Economics, Politics, And The Reading Of Statutes And The Constitution, Richard A. Posner

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Constitution In The Supreme Court: The Powers Of The Federal The Courts, 1801-1835, David P. Currie

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Ways Of Criticizing The Court, Frank H. Easterbrook

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Critics have attacked Supreme Court decisions not only for their substance, but also for their structure and inconsistency. Professor Easterbrook responds to these critics by arguing, first, that the increasing caseload of the judiciary, coupled with the techniques of Supreme Court case selection, makes more fractured decisions inevitable. Second, Professor Easterbrook applies Arrow's Theorem to show that it is impossible for critics to demand consistent decisions from the Supreme Court without requiring it to sacrifice its essential institutional nature.

The Search For Truth Continued, The Privilege Retained: A Response To Judge Frankel, Albert Alschuler

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Standby Letters Of Credit In Bankruptcy, Douglas G. Baird

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Rules, Standards, And The Battle Of The Forms: A Reassessment Of §2-207, Douglas G. Baird, Robert Weisberg

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Antitrust Suits By Targets Of Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

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Auctions And Sunk Costs In Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

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George J. Stigler: An Appreciation, Ronald H. Coase

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