Law Commons^™

Judging Judges: How We Choose Our Federal And State Judges, Joseph R. Grodin, Frank K. Richardson

Faculty Scholarship

No abstract provided.

The Exercise Of Jurisdiction Over And Enforcement Of Judgments Against Alien Defendants, Mary Kay Kane, Ronan E. Degnan

Faculty Scholarship

No abstract provided.

Lesbians, Gays And Feminist At The Bar: Translating Personal Experience Into Effective Legal Argument - A Symposium, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Confederate And Carpetbaggers: The Precedential Value Of Decisions From The Civil War And Reconstruction Era, Jim Paulsen, James Hambleton

Faculty Scholarship

Many Texas attorneys consulting older decisions for guidance breathe sighs of mental relief when they read a Texas Supreme Court case, rather than one of those pesky Court of Appeals or Commission of Appeals decisions with an arcane writ history or "judgment adopted" designation. After all, Texas Supreme Court cases are the top of the heap, precedent-wise, unless they have been overruled. Right? Well, maybe. In Texas, there are good and bad vintages for Texas Supreme Court opinions. The Civil War and Reconstruction years, from 1861 through 1873, are a particularly interesting legal vinyard.

Surprisingly enough, despite the century or …

The Ethics Of Insider Trading, Gary S. Lawson

Faculty Scholarship

The quickest way to become famous is often to become infamous, as arbitrageur Ivan Boesky has recently discovered. Prior to November 1986, Mr. Boesky was well-known within the financial community, but largely unknown outside it. That changed dramatically following revelations that he and Dennis Levine, a merger specialist with the investment banking firm of Drexel Burnham Lambert, Inc., had made tens of millions of dollars in the stock market by using Mr. Levine's advance knowledge of impending takeovers by Drexel clients. Today, after disgorging $50 million in profits, paying $50 million in penalties, and receiving a jail sentence, Mr. Boesky …

No Exit?: Opting Out, The Contractual Theory Of The Corporation, And The Special Case Of Remedies, John C. Coffee Jr.

Faculty Scholarship

Aloof and insular as corporate law often seems, it cannot remain uninfluenced for very long by developments in the mainstream of American civil law. In that mainstream, there is today flowing a strong, swift current called "tort reform." As currents go, this one is remarkably broad and perhaps a little shallow, but on it floats a number of diverse legislative proposals – ceilings on liability, restrictions on attorneys' fees, greater reliance on alternative methods of dispute resolution, restrictions on joint and several liability and contribution, and the curtailment of punitive damages. All of these proposals flow from the same wellspring: …

Justice Or Mercy?–A Personal Note On Defending The Guilty, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Foregoing Life-Sustaining Treatment: What Are The Legal Limits In An Aging Society?, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

The Unwisdom Of Allowing City Growth To Work Out Its Own Destiny, Garrett Power

Faculty Scholarship

No abstract provided.

Legislative Enforcement Of Equal Protection, Stephen F. Ross

Faculty Scholarship

This Article explores the legislative role in enforcing the constitutional guarantee to equal protection. Part I describes the underenforcement principle that explains the restrictive judicial exercise of authority in constitutional matters. The Article then focuses on Congress' role in examining issues relating to the constitutional guarantee of equal protection that the courts have chosen to underenforce. Part II analyzes relevant constitutional provisions that may empower or limit congressional actions. Part III considers ways in which Congress can address state violations of equal protection through directives to the judiciary and through the legislative process. Part IV details how both federal and …

The Reception Of Arbitration In United States Law, Thomas E. Carbonneau

Faculty Scholarship

The willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards - in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy.

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

The Scope Of Consular Immunity Under The Vienna Convention On Consular Relations: Towards A Principled Interpretation, Curtis J. Milhaupt

Faculty Scholarship

A consular officer, mistaken for a trespasser as he leaves his mission to attend a cultural function, struggles with a police officer and is subsequently charged with assault and battery. The Vienna Convention on Consular Relations provides that consular officers are immune from jurisdiction for "acts performed in the exercise of consular functions." Does the Vienna Convention shield the consular officer from suit? The scope of consular immunity is uncertain because courts differ in their application of the Convention's immunity rule.

This Note argues that a principled interpretation of the scope of consular immunity consistent with the Vienna Convention requires …

The Hague Evidence Convention In The Supreme Court: A Critique Of The Aérospatiale Decision, George A. Bermann

Faculty Scholarship

With its decision in Société Nationale Industrielle Aérospatiale v. United States District Court, the United States Supreme Court resolved what had been widely regarded as "one of the most difficult and important issues in international civil litigation in United States courts." This opportunity arose out of the divergence of views among American courts on the proper way to reconcile the need for full disclosure of evidence with respect for the sensitivities of foreign states where that evidence might be located. The case before the Supreme Court, like many lower court cases, dealt specifically with the impact of the Hague …

Drafting An Effective Greenmail Prohibition, Ronald J. Gilson

Faculty Scholarship

Hostile tender offers have become a recurrent political issue. In recent years Congress has held seemingly endless hearings on the subject, and by now the testimony has settled into a familiar dialogue. Potential acquirers cast themselves as the embodiment of Adam Smith's invisible hand – their activities energize the market for corporate control with the desirable result of improving the efficiency of corporate management. Management of potential targets, in turn, claim the role of Albert Chandler's visible hand – efficient managers who internalize a function previously carried out by an inefficient market. Their argument is that because the market for …

The Committee On The Constitutional System Proposals: Coherence And Dominance, Philip Chase Bobbitt

Faculty Scholarship

I have been a fellow traveler of the Committee on the Constitutional System virtually since its inception; indeed, I believe I was present when Mr. Cutler first made the speech at the University of Texas that became, "To Form a Government." During all this time I have never been able to quite free myself from the conviction that his concerns were absolutely right and fundamental to our era. Nor have I been able to persuade myself that the reforms that he recommends justify a departure from the framers' conception. I suppose this is why I was selected to give a …

Ethical Discretion In Lawyering, William H. Simon

Faculty Scholarship

In this Article, Professor Simon argues that conventional approaches to legal ethics are too categorical. Rather than operating within a system of formalized ethical rules, he argues, lawyers should exercise judgment and discretion in deciding what clients to represent and how to represent them. In exercising this discretion, lawyers should seek to "do justice." They should consider the merits of the client's claims and goals relative to those of opposing parties and other potential clients. They should also consider the substantive merits of the client's claims and the reliability of the standard legal procedures for resolving the problem at hand. …

The Confirmation Process: Law Or Politics?, Henry Paul Monaghan

Faculty Scholarship

In testimony before the Senate Judiciary Committee, I argued (and still believe) that Judge Robert Bork possessed surpassing qualifications for an appointment to the Supreme Court. Subsequently, I became persuaded that my submission was incomplete. Additional argument was necessary to establish that my testimony, if accepted, imposed a constitutional duty on senators to vote for confirmation. To my surprise, further reflection convinces me that no such argument is possible.

The Uncertain Case For Takeover Reform: An Essay On Stockholders, Stakeholders And Bust-Ups, John C. Coffee Jr.

Faculty Scholarship

In this Article, Professor John Coffee considers under what circumstances there could be a legitimate role for state regulation of tender offers. Professor Coffee suggests that state anti-takeover laws could (but do not) function to protect other stakeholders, including corporate management, in the target corporation where the implicit contract between the corporation and these stakeholders has broken down. He advances a model of corporate directors as mediators between shareholders and stakeholders in order to protect the expectations embodied in a web of implicit and explicit contracts.

Professor Coffee suggests that takeovers would be more palatable if the interests of stakeholders …

Protecting The Parental Rights Of Incarcerated Mothers Whose Children Are In Foster Care: Proposed Changes To New York's Termination Of Parental Rights Law, Philip Genty

Faculty Scholarship

In the past decade, the number of female prisoners in New York state and city jails has risen dramatically. Currently, there are 1,890 women incarcerated in New York State prisons, and an additional 1,626 women confined in New York City jails. Approximately seventy- two percent of the women in state prisons are parents, and, according to one informal study, nearly sixty percent of the women in city prisons are single parents with minor children. While some of these women can make formal or informal child care arrangements with relatives or close friends, many others must turn to state-regulated foster care. …

Regulation Of Manipulation Under Section 10(B): Security Prices And The Text Of The Securities Exchange Act Of 1934, Steve Thel

Faculty Scholarship

No abstract provided.

Judgment Call: Theoretical Approaches To Contract Decision-Making, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Public Law Litigation And Legal Scholarship, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Reimposition Of Capital Punishment In New Jersey: The Role Of Prosecutorial Discretion, Leigh B. Bienen, Neil A. Weiner, Deborah W. Denno, Paul D. Allison, Douglas L. Mills

Faculty Scholarship

After Furman v. Georgia held that state statutes that allow for the imposition of the death penalty in an arbitrary and capricious manner violate the Constitution, the states were forced to rewrite their capital punishment statutes. New Jersey adopted a new statute in 1982. Despite the attempt of the New Jersey legislature to comply with the mandate of Furman, application of the statute has resulted in clear and significant discrepancies in the treatment of potentially capital defendants based on the race of the victim, the county of jurisdiction, and the race of the defendant. This article details a large study …

Her Brother's Keeper: The Prosecutor's Responsibility When Defense Counsel Has A Potential Conflict Of Interest , Bruce A. Green

Faculty Scholarship

What are the responsibilities of a prosecutor when she learns in the course of preparing for trial that defense counsel has a potential conflict of interest? Must the prosecutor alert defense counsel and the trial judge to the problem? May she move to disqualify defense counsel? This Article explores the responsibilities that courts have begun to, and ought to, impose on prosecutors. In large part, the prosecutor's responsibilities are subordinate to those of defense counsel and the trial judge, who have the primary responsibility to ensure that the defendant's right to independent counsel is not unfairly abridged. Therefore, as background …

Making Rules To Dispose Of Manifestly Unfounded Assertions: An Exorcism Of The Bogy Of Non-Trans-Substantive Rules Of Civil Procedure, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Freedom And Community In The Academy, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Continuing Work On The Civil Rules: The Summons, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Heroes In The Law: Alford V. Shaw, James D. Cox

Faculty Scholarship

No abstract provided.

From The Editor: Writing About Original Research, Richard A. Danner

Faculty Scholarship

No abstract provided.