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A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger Jan 1992

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary ...


A Reply: Imperfect Bargains, Imperfect Trials, And Innocent Defendants, Robert E. Scott Jan 1992

A Reply: Imperfect Bargains, Imperfect Trials, And Innocent Defendants, Robert E. Scott

Faculty Scholarship

To understand what is and is not wrong with plea bargaining, one must understand the relationship of bargains to trials. Unsurprisingly, we disagree with much of what Judge Frank Easterbrook and Professor Stephen Schulhofer say about that relationship. Most of those disagreements need not be rehearsed here; readers attentive enough to wade through their essays and ours will pick up the key points readily enough. But there is one point where the dispute is at once sharp and hidden. It has to do with the fact that both trials and bargains are flawed.

That fact might seem obvious, but the ...


Plea-Bargaining As A Social Contract, Robert E. Scott, William J. Stuntz Jan 1992

Plea-Bargaining As A Social Contract, Robert E. Scott, William J. Stuntz

Faculty Scholarship

Most criminal prosecutions are settled without a trial. The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority ...


The Ethics Of Criminal Defense, William H. Simon Jan 1992

The Ethics Of Criminal Defense, William H. Simon

Faculty Scholarship

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil ...


The Reasonable Women And The Ordinary Man, Carol Sanger Jan 1992

The Reasonable Women And The Ordinary Man, Carol Sanger

Faculty Scholarship

Nineteen ninety-one was a seismic year for sexual harassment. The first localized shift occurred in January, when the Ninth Circuit established that the standard by which sexual harassment in the workplace would be judged was no longer the reasonable man or even the reasonable person but rather the reasonable woman. In October a larger audience felt a much stronger jolt when Anita Hill spoke before the Senate Judiciary Committee.

Hill testified that Supreme Court nominee Clarence Thomas had sexually harassed her while she worked for him at the Department of Education and at the Equal Employment Opportunity Commission. Her testimony ...


Paradigms Lost: The Blurring Of The Criminal And Civil Law Models – And What Can Be Done About It, John C. Coffee Jr. Jan 1992

Paradigms Lost: The Blurring Of The Criminal And Civil Law Models – And What Can Be Done About It, John C. Coffee Jr.

Faculty Scholarship

Ken Mann's professed goal is to "shrink" the criminal law. To realize this worthy end, he advocates punitive civil sanctions that would largely parallel criminal sanctions, thereby reducing the need to use criminal law in order to achieve punitive purposes. I agree (heartily) with the end he seeks and even more with his general precept that "the criminal law should be reserved for the most damaging wrongs and the most culpable defendants." But I believe that the means he proposes would be counterproductive – and would probably expand, rather than contract, the operative scope of the criminal law as an ...


The Reasonable Woman And The Ordinary Man, Carol Sanger Jan 1992

The Reasonable Woman And The Ordinary Man, Carol Sanger

Faculty Scholarship

... Objections to the reasonable woman standard [for sexual harassment] combine doctrinal concerns with practical ones. The doctrinal question is something like, Whatever happened to gender neutrality? How are men supposed to know what conduct strikes their victims as intimidating, hostile, or offensive? After all, women are so sensitive – take Anita Hill. Why, as men often ask, can't women be more reasonable? ...

The answer is that at least in determining what behavior is sexually harassing, women are not like men. As many feminists have explained, women commonly experience as fearful what men find fun. ...