Law Commons^™

The Role Of Strategic Reasoning In Constitutional Interpretation: In Defense Of The Pathological Perspective Comments, Vincent A. Blasi

Faculty Scholarship

I am indebted to Professor Christie, not only for noticing my work but also for challenging it in so forthright a manner. He has identified a feature of my thesis that deserves to be a focal point for additional debate. Any reader of my original article who was undecided whether to agree with it ought to be aided considerably in the task of critical evaluation by the exchange Professor Christie has initiated. I know my own understanding of the premises and implications of my thesis has been enhanced by the experience of working out a response to his challenge.

The …

Child Sexual Abuse, Jeffrey A. Fagan

Faculty Scholarship

Over the past two decades awareness of child sexual abuse among academics and professionals has grown from several convergent trends: the "discovery" of child abuse in the 1960's, concern by feminists over sexual assault and rape, increasing reports to law enforcement and child protective service workers of sexually abused children, and the general "deprivatization" of the family. More recently, general public awareness of child sexual abuse has followed well-publicized cases of child molestation in day-care centers, nationwide concern over pornography and its subsequent links to teenage prostitution, and runaway youth, delinquency, and family violence among adults.

Lawmaking As An Expression Of Self, George P. Fletcher

Faculty Scholarship

In this lecture I should like to encourage an attitude toward legal phenomena that stresses both tradition and change as an expression of meaning, particularly as an expression of national legal identity. I will illustrate this thesis with some specific examples of substantive rules in American and in German law. In the latter part of the lecture, I shall turn to the choice of language as a parallel expression of identity within a particular legal system.

The Limits Of Rationality And The Place Of Religious Conviction: Protecting Animals And The Environment, Kent Greenawalt

Faculty Scholarship

When people hold religious views that have implications for moral choices and for the desirable uses of law, may they properly rely on those religious views in our liberal democracy? The commonly expressed ideas that church and state are separate and that no group should impose its religious views on others may seem to suggest that political dialogue and bases for political decisions should be wholly nonreligious. This position, which is the main target of this Article, receives articulate defense among prominent social philosophers. This Article urges a different position: that no commonly shared ground of decision is available for …

Comment On Professor Van Alstyne's Paper, Henry P. Monaghan

Faculty Scholarship

My major difficulty with Professor Van Alstyne's paper is its incomplete character. In the end, he makes only two points: first, judges are authorized to apply "this Constitution," not to do justice; and second, judges should not lie about what they are doing. The danger is that after a while the first point sounds somewhat empty, while the actual content of the second point seems entirely parasitic on the first.

Economic Perspectives On Trade In Professional Services, Jagdish N. Bhagwati

Faculty Scholarship

This paper will bring an economist's perspective to bear on three questions raised at this conference by some of the other important contributions:

1. How are services different from goods;
2. What implications do these differences have for the rules we seek to negotiate to free trade in services; and
3. How can we induce the key developing countries, such as Brazil, Egypt and India, which have generally opposed liberalization of trade in services, to support it?

Answers to these questions will naturally bear critically on the narrower question of international trade in professional, and especially legal, services, since recommendations and decisions on …

Curtiss-Wright Comes Home: Executive Power And National Security Secrecy, Harold Edgar, Benno C. Schmidt Jr.

Faculty Scholarship

Collectively we face no greater challenge than maintaining sensible perspectives on national security issues. Central to this task is the need to achieve a tolerable balance between secrecy and openness in public debate on such issues. There are real threats to our nation, and we would be foolish to ignore them; history teaches that no culture is guaranteed survival. Yet, how to respond to such threats must be profoundly controversial. The virtue of liberal society is that it values highly the realization of private preferences; the sacrifice of those desires to attain another's vision of collective security will never be …

Error And Rationality In Individual Decisionmaking: An Essay On The Relationship Between Cognitive Illusion And The Management Of Choice, Robert E. Scott

Faculty Scholarship

How do individuals make choices? In recent years, economists, psychologists and legal academics have searched for answers to various aspects of this question. One topic of recent interest, for example, concerns a lingering problem in information theory: Does consumer inability to process "too much" information cause market failure? The normative implications of this question raise significant policy issues. If consumers' cognitive circuits can become overloaded, then information disclosure is less appealing than direct regulation as a solution to problems of market failure.

The Lawyer As Informer, Gerard E. Lynch

Faculty Scholarship

From the schoolyard "tattletale" to the police officer's "confidential informant" to the Pentagon "whistle blower," our society is deeply ambivalent toward those who report the wrongdoing of others to the authorities. On the one hand, society values informers. Without informers, serious misbehavior would certainly escape correction. The police officers' code of silence with respect to fellow officers' crimes, for example, may be a major obstacle to eliminating police corruption and brutality. On the other hand, society scorns informers as betrayers of confidence. Even one who violates an antisocial pact such as the police officers' code of silence is viewed as …

An Offer She Can’T Refuse: When Fundamental Rights And Conditions On Government Benefits Collide, Marie Failinger

Faculty Scholarship

This article criticizes the Maher/Harris conditions doctrine on two levels. At the first level, it suggests that the Maher/Harris doctrine cannot justify the Court’s decisions to uphold government withdrawals of funding from rights-exercises. At the second level, after exposing and contrasting the definitional presuppositions of the Court in Maher and Harris with previous cases, the article suggests that the Maher/Harris doctrine is a failure because it uses utterly inadequate rights theory to resolve emerging issues of conflicting human need and conscience, issues which are mediated by government action. The author creates a space for a discussion of a new framework …

The "Official" Texas Court Reports: The Rest Of The Story, James Hambleton, Jim Paulsen

Faculty Scholarship

In the January 1986 issue of the Texas Bar Journal, this column recounted the checkered tale of the official Texas court reports, from the birth of the Texas Reports in the first State Legislature, to their mysterious death at the hands of the Legislature in 1963, and their equally mysterious resurrection by the most recent session, in the form of the Texas Government Code. The authors have since been deluged with reader mail on the subject, and have decided to share excerpts from both letters.

The Interpretation Of Means Expressions During Prosecution, R. Carl Moy

Faculty Scholarship

This article briefly explains how the scope of a claim including a means expression is determined both under the PTO view and a strict application of the statutory language. The lack of consensus and current state of the law in the area are illustrated through an analysis of several recent decisions of the Federal Circuit. The policies underlying the PTO and statutory methods of interpreting means expressions during prosecution are examined in an effort to demonstrate that the statutory method more effectively furthers the policies underlying the patent system.

Some Arguments That The Stock Market Is Not Efficient, William K.S. Wang

Faculty Scholarship

No abstract provided.

The Forgotten Era, David S. Bogen

Faculty Scholarship

No abstract provided.

Jurisprudence And Legal Philosophy In Twentieth-Century America - Major Themes And Developments, Martin P. Golding

Faculty Scholarship

No abstract provided.

The Pitfalls Of Empirical Research: Studying Faculty Publication Studies, David H. Kaye, Ira Mark Ellman

Faculty Scholarship

This article critiques empirical studies by attorneys in the hopes that they will be held to the minimal standards of research competence that are to be found in other academic fields which rely on empirical studies. Because law-trained scholars are notoriously weak at empirical research, this article identifies some of the methodological considerations that should inform empirical research. These fall into four broad categories: (1) problems of conceptualization, (2) problems of measurement, (3) problems of data presentation and analysis, and (4) problems of inference. This article examines all of these considerations in the context of an empirical survey done by …

Do We Need A Calculus Of Weight To Understand Proof Beyond A Reasonable Doubt?, David H. Kaye

Faculty Scholarship

The commentary on a paper by L.J. Cohen, prepared for a symposium on probability and inference in the law of evidence, shows that the legal requirement of proof beyond a reasonable doubt can be understood simply as demanding a sufficiently high probability that the prosecution's narrative or story of the facts, which captures all the elements of the offense, is true. No separate measure of the "weight" of the totality of the evidence is required to understand the burden of persuasion. Any incompleteness in the evidence can be accounted for by a conditional probability that includes the presence of any …

A Relational Theory Of Secured Financing, Robert E. Scott

Faculty Scholarship

Despite advances in finance theory, secured debt remains a puzzle. As a consequence, the justification for the current legal regulation of secured financing is similarly unclear. What purposes, whether benign or malignant, does security serve? And what explains the peculiar system of priorities established by Article 9 of the Uniform Commercial Code? These are particularly urgent questions for students of commercial law because legally created priorities among creditors are an apparent aberration. In most legal regimes, equal treatment of those similarly situated is an important normative goal. Indeed, much of federal bankruptcy law seems to reflect a conception of business …

Constitutionalizing The Codes, James Hambleton, Jim Paulsen

Faculty Scholarship

The Texas Legislative Council has been proposing, and the Texas Legislature has been routinely approving, codes since 1967. Just last year, in fact, this program to codify all the statutory law of Texas passed the halfway mark, with adoption of the Election Code, the Government Code, and the Civil Practice and Remedies Code.

The legislation implementing each of these codes contains an identical proclamation: "This Act is enacted pursuant to Article III, Section 43, of the Texas Constitution." Oddly enough, though, the 69th Legislature not only passed these codes; it passed a joint resolution calling for a change in the …

Fishing And Selling, Victor P. Goldberg

Faculty Scholarship

Consumers are a lot like fish, out there waiting to be hooked. Like most images, this one is a caricature of reality. The choice and search effort of consumers is suppressed in order to explore the implications of selling activity by manufacturers and retailers. In particular, the fishing analogy suggests that there is a tendency toward excessive selling activity if sellers do not take into account the effects of their activity on the costs of their rivals. However, sellers, like fishermen, have an incentive to arrange their affairs to mitigate the dissipation of rents. This argument is developed in Section …

Distinguishing Justifications From Excuses, Kent Greenawalt

Faculty Scholarship

Ann swings her arm and injures Ben. She faces moral condemnation and legal liability unless she can offer an explanation that absolves her of full blame. She might make a claim of justification that, despite initial appearances, her action was desirable or proper, or she might make a claim of excuse that she does not bear full responsibility for injuring Ben. If Ann is fully justified, she will not be subject to blame or to classification as a weak or defective person. If Ann is excused, she may be regarded as wholly or partly free of blame, but she will …

Beyond Diversity: Federal Multiparty, Multiforum Jurisdiction, Thomas D. Rowe Jr., Kenneth D. Sibley

Faculty Scholarship

No abstract provided.

The Lithotripsy Game In North Carolina: A New Technology Under Regulation And Deregulation, Clark C. Havighurst, Robert S. Mcdonough

Faculty Scholarship

No abstract provided.

Legislative Oversight Of Administrative Agencies In Minnesota, J. David Prince

Faculty Scholarship

Due to the expanding role of agencies within the Executive branch at both the state and federal level, legislatures are struggling to fulfill their obligation to hold agencies accountable and to modify legislative mandates when necessary. In order for the legislature to fulfill this obligation, it must have the capability to exercise policy formation and oversight goals. This Article will first examine the need for legislative oversight and the legislative oversight mechanism in Minnesota. Next, the Article discusses the legislative controls currently being used at the federal and state level. Executive control mechanisms and their possible use by a legislature …

New Rules: A Pocket Introduction, James Hambleton, Jim Paulsen

Faculty Scholarship

All in all, though, the new Rules of Appellate Procedure, effective Sept. 1, 1986, should be welcomed by bench and bar alike. The cooperation of this state's two high courts has produced a coordinated system of rules that should reduce confusion among attorneys and court personnel. In the process, the rules formerly applicable only to civil appeals have been reorganized, and are now presented in a format that more logically follows the flow of an appeal.

An Unconstitutional Fiction: The Felony-Murder Rule As Applied To The Supply Of Drugs, Lynne H. Rambo

Faculty Scholarship

James Wong and Kent Louie were looking for a good time in Chinatown, and around nine o'clock they got lucky. Two young women agreed to join them. The women, however, wanted some heroin first, so they gave their new companions money and asked them to purchase the drug. After the men obliged, both women injected themselves, and everyone proceeded to a hotel. The next morning, only one of the women woke up. James and Kent, it turned out, had really not been lucky at all; both were tried, convicted and sentenced for felony-murder.

Although the men probably did not know …

The Case For Parallel Importation, Rory K. Little, Jamie S. Gorelick

Faculty Scholarship

No abstract provided.

Sanctions Under Amended Federal Rule 11–Some "Chilling" Problems In The Struggle Between Compensation And Punishment, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

The Constitutional Vulnerability Of American Local Government: The Politics Of City Status In American Law, Joan C. Williams

Faculty Scholarship

No abstract provided.

On The 'Usefulness' Of Suspect Classifications, James W. Ellis

Faculty Scholarship

Reviewing discrimination in legal decisions.