Law Commons^™

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White

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In this article, the author discusses how Chevron intersects with one important competing norm - stare decisis. Stare decisis counsels the Court to adhere to its own decisions, particularly statutory ones, absent substantial justification for departure. To what extent should stare decisis apply when an agency's interpretation of a statute, otherwise deserving of deference under Chevron, conflicts with a prior interpretation of the statute by the Supreme Court?

This article suggests the following answer: If the Court's prior opinion upheld the agency's interpretation as one reasonable reading of the statute, but not the only one possible, and the agency thereafter …

Foreign Duty: Export Control Goes Private, Anne Proffitt Dupre

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If you're an exporter, it pays to be a know-it-all these days.

Does there appear to be even a slight potential that the item you're shipping could play any part at all in modern weaponry? then you need to know exactly how that item will or may be used. You also may need to know who will ultimately use it, and where.

If you're a lawyer advising either that exporter or a supporting financial institution, you, too, now need an extra measure of vigilance. For one thing, it helps to know how to write loan documents with the necessary safeguards …

Priorities In Accounts: The Crazy Quilt Of Current Law And A Proposal For Reform, Dan T. Coenen

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Moe Promisee has a right under a contract to receive monetary payments from Mae Promisor. Moe assigns his right first to Faye and then to Clay. Whom must Mae pay, Faye or Clay? For more than a century, judges have struggled with successive assignments to different persons of the same contract right. These cases which typically involve rights to monetary payments called "accounts" have generated subtleties of doctrine and disagreements among courts. Today, as a general rule, the Uniform Commercial Code controls these cases. Ambiguities, however, lurk in the code. Cryptic common-law doctrines also continue to govern many successive-assignment problems. …

The Georgia Jury And Negligence: The View From The (Federal) Bench, R. Perry Sentell Jr.

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This is the second part of a two-part inquiry into the quality of jury performance in Georgia negligence cases. Evaluation begins from within. That is an especially prominent truth in respect to the trial of negligence cases. The lay-professional partnership composing the civil trial system is unique. the professional's continuity provides a point of perfect perspective on the transient lay component--both its capacity and its performance. If the professional will share that perspective, it can structure a benchmark for foundational appraisal. To their great credit, the state and federal trial judges of Georgia are unstinting in assisting to construct that …

State Taxation Of Nonresidents' Pension Income, Walter Hellerstein

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This article examines the issues raised by the efforts of some states to tax the pension income of their former residents and of the proposed congressional legislation to forbid such taxation. While there may be sound policy reasons for forbidding state taxation of nonresident pension income, they have yet to emerge clearly from the rhetoric that has thus far dominated the debate over the pension tax issue. The goal of the article is to examine the questions raised by the controversy over state taxation of nonresident pensions in the hope that dispassionate analysis of the problem may contribute to a …

The Scottish Enlightenment, The Democratic Intellect And The Work Of Madame Justice Wilson, Alan Watson

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To talk of Madame Justice Wilson in the context of her Scottish background, the Scottish Enlightenment and the Democratic Intellect is one of the most exciting yet daunting tasks I have undertaken. A huge problem, which I will mention first but not discuss, has been to get to grips with her towering intellect. As will become clear, this problem was much diminished by Madame Justice Wilson herself: she writes with a simplicity, grace, rationality and humanity that may even lead one to underestimate the complexity of her thought.

Penumbral Reasoning On The Right, Glenn Harlan Reynolds

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The use of penumbral reasoning in cases like Griswold v. Connecticut has received considerable criticism from so-called conservative constitutional commentators, most notably Robert Bork. This essay demonstrates that penumbral reasoning is also widely used by courts in service of results generally regarded as conservative, with much less controversy. Penumbral reasoning, it suggests, is an essential implement in the judicial toolbox, and worthy of more respect, and use, from courts that care about fidelity to constitutional text and structure.

A Civil Rights Agenda For The Year 2000: Confessions Of An Identity Politician, Fran Ansley

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No abstract provided.

Scientific Policymaking And The Torts Revolution: The Revenge Of The Ordinary Observer, Michael Wells

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My argument will make heavy use of a distinction, introduced by Professor Bruce Ackerman, between two styles of reasoning in addressing legal issues. One is the perspective of the "Ordinary Observer," who begins his analysis by looking at the common practices of laymen and makes legal rules based on the expectation of a well-socialized member of society, without regard to whether the resulting body of law fits into any coherent pattern. Ackerman contrasts this method with that of the "Scientific Policymaker," who begins from the premise that the law should serve some goal or small group of goals and who …

Are Local Governments Liable Under Rule 10b-5? Textualism And Its Limits, Margaret V. Sachs

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Whether state and local governments can be sued for damages is a question that cuts across subject-area boundaries. This question, which has long confounded courts in the areas of both antitrust and civil rightslaw, now has arisen in a new area: section 10(b) of the Securities Exchange Act of 1934 and rule 10b-5. The thesis of this Article is that a local government is an inappropriate rule 10b-5 defendant, regardless of whether it is the issuer of the securities in question or an alleged participant in a scheme involving corporate securities. The only appropriate rule 10b-5 defendants are private actors.

Taking Advice Seriously: An Immodest Proposal For Reforming The Confirmation Process, Glenn Harlan Reynolds

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This brief Essay suggests a structural reform to the judicial nomination and confirmation process, designed to reduce the role of partisanship and special interest politicking. Though this proposal is aimed primarily at preventing logjams when the President and Senate are of different parties, it is likely to be beneficial even where that is not the case, to the extent that the opposition party is prone to filibuster nominees.

Experts As Hearsay Conduits: Confrontation Abuses In Opinion Testimony, Ronald L. Carlson

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The dispute over whether litigants may use experts to run unexamined hearsay into the trial record is a microcosm of a larger debate. The larger question is whether judicial review of expert testimony should be passive, or whether the expert witness process should be marked by active judicial policing. Does the plethora of expert opinions presently being offered in modern trials merit special scrutiny by the courts?

Some scholars urge that courts must accommodate experts. Proponents of this view favor few challenges to the unrestricted rendition of opinions by an expert, whether the expert is real or self-proclaimed. Under this …

International Space Law: Into The Twenty-First Century, Glenn Harlan Reynolds

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A look at issues of space law, both international and domestic, likely to be relevant in the 21st century.

North American Free Trade Agreement: The Public Debate, Fran Ansley

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No abstract provided.

Louisiana Family Law, Christopher L. Blakesley

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No abstract provided.

The Statutory And Constitutional Limits Of Using Protected Speech As Evidence Of Unlawful Motive Under The National Labor Relations Act, Rebecca White

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A difficulty inherent in cases under the National Labor Relations Act (NLRA), as in other areas of employment law, is in determining why the employer acted. Perhaps an even harder question, and one too frequently overlooked, is what form of evidence the National Labor Relations Board (NLRB or Board) and any reviewing court properly may consider in determining motive. More specifically, can the Board take into account an employer's vigorous opposition to the union in deciding whether or not a particular action was motivated by antiunion animus? Although common sense suggests yes, several courts of appeals have said no, relying …

(Un)Luckey V. Miller: The Case For A Structural Injunction To Improve Indigent Defense Services, Rodger D. Citron

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No abstract provided.

Fragments On The Deathwatch, Louise Harmon

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No abstract provided.

The Continuing Availability Of Retaliatory Discharge And Other State Tort Causes Of Action To Employees Covered By Collective Bargaining Agreements, Peter Zablotsky

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No abstract provided.

Developing A World Vision: An Introduction To International Environmental Policy, Beverly Mcqueary Smith

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No abstract provided.

Lee V. Weisman And The Establishment Clause: Are Invocations And Benedictions At Public School Graduations Constitutionally Unspeakable?, Thomas A. Schweitzer

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No abstract provided.

One Hundred Years Of Harmful Error: The Historical Jurisprudence Of Medical Malpractice, Theodore Silver

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In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to …

On Bringing The Justice Mission Conference Back Home, Marjorie A. Silver

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No abstract provided.

A Primer On Resolving Disputes: Lessons From Alternative Dispute Resolution, Harold I. Abramson

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No abstract provided.

"Academic Challenge" Cases: Should Judicial Review Extend To Academic Evaluations Of Students?, Thomas A. Schweitzer

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No abstract provided.

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

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No abstract provided.

Freedom From Reliance: A Contract Approach To Express Warranty, Sidney Kwestel

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No abstract provided.

Tort Remedies For Victims Of Domestic Abuse, Douglas D. Scherer

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This Article discusses the use of intentional tort actions by victims of domestic abuse who seek monetary damages. Part I discusses the phenomenon of domestic abuse, with emphasis on physical and emotional harm and factures that justify punitive and compensatory damage awards. Part II discusses the torts of battery, assault and intentional infliction of emotional distress, and the appropriateness of these actions in domestic abuse cases. Part III discusses the interspousal immunity doctrine and demonstrates the limited extent to which the doctrine bars domestic abuse tort actions. Finally Part IV discusses judicial acceptance of tort actions in domestic abuse cases. …

(Un)Luckey V. Miller: The Case For A Structural Injunction To Improve Indigent Defense Services, Rodger D. Citron

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No abstract provided.

U.S.-Mexico Free Trade From The Bottom: A Postcard From The Border, Fran Ansley

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No abstract provided.