Law Commons^™

The Uses And Abuses Of Incumbency: People V. Ohrenstein And The Limits Of Inherent Legislative Power, James A. Gardner

Journal Articles

No abstract provided.

What's Left?, Guyora Binder

Journal Articles

Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic …

Women Of Color And Health: Issues Of Gender, Community, And Power, Judy Scales-Trent

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No abstract provided.

Law, Culture, And Children With Disabilities: Educational Rights And The Construction Of Difference, David M. Engel

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No abstract provided.

The Second Amendment: Toward An Afro-Americanist Reconsideration, Robert J. Cottrol, Raymond T. Diamond

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No abstract provided.

The Child In International Law: A Pathfinder And Selected Bibliography, Christine Corcos

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No abstract provided.

The Americans With Disabilities Act: Analysis And Implications Of A Second-Generation Civil Rights Statute, Robert L. Burgdorf Jr.

Journal Articles

Martin Luther King, Jr. once wrote that our nation's civil rights laws were a "sparse and insufficient collection of statutes ... barely a naked framework."' On their faces, many federal civil rights statutes constitute little more than broad directives that "Thou shalt not discriminate." Broadly worded statements outlawing discrimination were the optimal approach to statutory draftsmanship in light of the controversial nature of the civil rights laws passed in the 1960s and 1970s. The drafters of these statutes needed to craft language that would be palatable to a majority of the members of Congress while still having a meaningful impact …

"Involuntary Strict Foreclosure" Under Section 9-505(2) Of The Uniform Commercial Code: Tarpit For The Tardy Creditor, Wendell H. Holmes

Journal Articles

No abstract provided.

Credal Probability, David H. Kaye

Journal Articles

This article responds to Paul Bergman and Al Moore's doubt that ideal triers of facts would be Bayesians. They argue that Bayes' rule, and probability theory in general, fails as a theoretical factfinding model. While probability has long been an accepted measure of belief in empirical propositions and the validity of inductive arguments, this articles addresses Bergman and Moore's doubts directly. It shows how their examples demonstrating the "frequentist" character of Bayesian methodology or the fallacies in Bayesian analysis are easily handled without a frequentist interpretation of probability. Then it shows that an ideal juror's partial beliefs will conform to …

Evidence Engendered, Kit Kinports

Journal Articles

Part I of this article briefly describes feminist legal theory and its evolution. Part II then discusses the extent to which evidence as a whole is a gendered topic that reflects predominantly male traits and ideals, and Part III analyzes various specific evidentiary doctrines from a feminist perspective. Finally, Part IV examines way of incorporating feminist theories in teaching an evidence course.

Better Than No Teeth At All?, John Henry Schlegel

Journal Articles

No abstract provided.

Introduction To Symposium: Achieving Justice In Arbitration, Thomas E. Carbonneau

Journal Articles

This symposium attests to the depth of scholarship that now surrounds the law of arbitration and to arbitration's widening adjudicatory mission in matters international and domestic. Authored by senior and emerging scholars who share a commitment to professional excellence, the various contributions not only assure continuity in arbitral scholarship, but also underscore the growing sophistication of arbitral practice and illustrate the complexity of the relationship between arbitration and the legal process. This symposium represents an inquiry into the convergence and divergence of legal and arbitral adjudicatory values and what impact these similarities and differences might have upon the functioning and …

"Equal Members Of The Community": The Public Accommodations Provisions Of The Americans With Disabilities Act, Robert Burgdorf

Journal Articles

Nearly three decades ago, four black students sat down at a lunch counter in a Woolworth's store in Greensboro, North Carolina, ordered a cup of coffee, and refused to move until they were served. I Unknown to the four young men at the time, their act of courage would help precipitate a series of sit-in protests and other forms of civil disobedience challenging racial segregation at lunch counters, restaurants, parks, hotels, motels, and other facilities. The desegregation of such places was a principal objective of civil rights protests, lawsuits, and proposals for legislative reform during the early 1960s.2 Equal opportunity …

Law School Rights: The Establishment Of New York Law School, 1891-1897, James A. Wooten

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No abstract provided.

The Politics Of Virtue: Animals, Theology, And Abortion, Elizabeth B. Boyer, Alan Freeman

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No abstract provided.

Feminist Jurisprudence: The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda M. Finley, Carin Clauss, Joan Bertin

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No abstract provided.

Habeas Corpus, Qualified Immunity, And Crystal Balls: Predicting The Course Of Constitutional Law, Kit Kinports

Journal Articles

After describing the basic legal and policy issues surrounding the qualified immunity defense and the use of novelty to explain procedural defaults in habeas cases, Part I of this article advocates a standard for both types of cases that asks whether a person exercising reasonable diligence in the same circumstances would have been aware of the relevant constitutional principles. With this standard in mind, Part II examines the qualified immunity defense in detail, concluding that in many cases public officials are given immunity even though they unreasonably failed to recognize the constitutional implications of their conduct. Part III compares the …

The Admissibility Of Dna Evidence, David H. Kaye

Journal Articles

In contrast to the widespread acceptance of red blood cell grouping, blood serum protein and enzyme analysis, and HLA typing, the evidentiary status of forensic applications of recombinant-DNA technology is in flux. A proper evidentiary analysis must attend to the fact that there is no single method of DNA typing. As with the more established genetic tests, the probative value of the laboratory findings depends both on the procedure employed and the genetic characteristics that are discerned. This paper describes some of these procedures and the theory that lies behind them, and then considers the developing case law. Given the …

The Positivist Foundations Of Originalism: An Account And Critique, James A. Gardner

Journal Articles

No abstract provided.

Environmental Policy In The European Community: Observations On The European Environment Agency, David A. Westbrook

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No abstract provided.

Inherently Discriminatory Conduct Revisited: Do We Know It When We See It?, Barbara J. Fick

Journal Articles

"This article traces the development of the inherently discriminatory doctrine, proposes some guidelines for determining when employer conduct falls under the rubric of the inherently discriminatory doctrine, and analyzes two cases dealing with employer use of temporary replacements during offensive lockouts in light of the proposed guidelines."

Enforcing The Prohibition On The Use Of Force: The U.N.'S Response To Iraq's Invasion Of Kuwait, Mary Ellen O'Connell

Journal Articles

On August 2, 1990, Iraq invaded and swiftly occupied its neighbor, Kuwait. Within hours, the United Nations Security Council ("Council") condemned the invasion, demanding immediate and unconditional Iraqi withdrawal. During the Cold War, the United Nations (U.N.) rarely responded to aggression with anything more than such resolutions of condemnation. Either the Soviet Union or the United States regularly vetoed proposals to do more. The end of the Cold War has freed the U.N. to enforce the U.N. Charter's prohibition on the use of force. After August 2, it began enforcing the prohibition against Iraq.

When the drafters of the Charter …

Process Of Constitutional Decision Making, Kenneth F. Ripple

Journal Articles

Over the past decade, our profession has engaged in an intense debate over the proper role of judges in the interpretation of our Constitution. This is not, of course, a new controversy. It has been with us ever since Chief Justice Marshall's decision in Marbury v. Madison.' However, during this last decade, the debate has taken on new dimensions. There is a new range and depth to the inquiry. What began as a discussion largely among members of the academic bar and some members of the judiciary has become a national political issue. Yet the basic question remains: In a …

Rethinking Marriage: Feminist Ideology, Economic Change, And Divorce Reform, Margaret F. Brinig, June Carbone

Journal Articles

Making sense of divorce requires making sense of marriage. Yet, while the legal literature abounds with publications about the difficulties with modern divorce, it rarely mentions marriage. What is the role of marriage in the modern era? Does it continue to involve a lifelong commitment? Does it depend on the perpetuation of different roles assigned by gender? Should marriage remain the principal focus of societal provisions for childrearing? What is the role of the state in regulating this most intimate of relationships?

This Article attempts to address these questions by working backwards. With the decline in the importance of religion …

Why A Private Right Of Action Against Dumping Would Violate Gatt, Roger P. Alford

Journal Articles

Despite its other successes, the General Agreement on Tariffs and Trade (GATT) has been criticized as being anything but successful in the antidumping arena. In particular, industries in the United States argue that GATT has failed to control dumping effectively and that alternative forms of relief are needed to counteract this unfair trade practice. The root of their concerns is the prospective nature of the existing remedy. Since antidumping duties are assessed only after a violation has been detected, dumping is essentially a risk-free, no-lose proposition, giving foreign exporters a free "first bite at the apple." The absence of monetary …

Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley

Journal Articles

From all the talk about our religious pluralism—how extensive, indelible, inarbitrable it is—one would expect that establishing one definition of religious liberty would be the mother of all civic disturbances. Wrong. We have a common definition of religious liberty. I can demonstrate our agreement with one exhibit: the immensely broad based denunciation of the 1990 Supreme Court decision, Employment Division v. Smith. Two counsellors at a drug rehabilitation center (Alfred Smith and Galen Black) appealed Oregon’s denial of unemployment benefits. Oregon cited the “misconduct” that led to their discharges. Their “misconduct” consisted of using the hallucinogenic drug peyote. Peyote …

Inaugural Howard Lichtenstein Lecture In Legal Ethics: Lawyer Professionalism As A Moral Argument, Thomas L. Shaffer

Journal Articles

The recurrent movement to call or recall lawyers to professionalism is a moral argument. It is an argument made to individual lawyers, a claim among lawyers, that professionalism has to do with being a good person.

I see two aspects to the claim that professionalism is a moral value: one aspect says to a person "be professional." It is an admonition to virtue. The other aspect says to a person, "be in the profession—be of it," with an appeal that seems familiar from other admonitions we have heard to align ourselves with groups that are supposed to make us better …

Breaching The Union Constitution: Can A Member Make A Federal Case Of It? An Analysis Of Wooddell V. Ibew Local Union No. 71, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Wooddell v. IBEW Local Union No. 71, 502 U.S. 93 (1991). The author expected the Court to address whether Section 301 of the Labor Relations Management Act creates a federal cause of action under which a union member can sue his union for breach of the union's constitution.

Does Title Vii Apply In Saudi Arabia? An Analysis Of Eeoc V. Arabian American Oil Co., Barbara J, Fick

Journal Articles

This article previews the Supreme Court case EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991). The author expected the Court to decied whether Congress intended the mandates of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination to extend extraterritorially.

Presenting Expert Testimony, James H. Seckinger

Journal Articles

Mindful that the readers of this Commentary include both experienced advocates as well as lawyers embarking on new careers in the courtroom, this author has divided the Commentary into two parts. The first part considers the seven touchstones for a persuasive direct examination of an expert witness. This discussion should be useful for the experienced and inexperienced advocate alike. The second part of the paper is intended as a primer on practical matters surrounding the selection, preparation, and presentation of an expert as a witness at trial. Experienced advocates may find in these pages confirmation of their practice concerning the …