Law Commons^™

Better Living Through Crime And Tort, Anita Bernstein

Faculty Scholarship

No abstract provided.

Lessons From The Past: Revenge Yesterday And Today Symposium, Tamar Frankel

Faculty Scholarship

Professor Seipp's Paper transports us to the Middle Ages to discover a society that views crime and tort quite differently from the way we view these categories today. Yet our discovery of that society offers a perspective about our own. In Professor Seipp's world the victim of a wrong had a choice: demand revenge by determining how the wrongdoer would be punished, or demand monetary compensation. These two entitlements were mutually exclusive. The victim could choose either one, but to some extent, especially in earlier times, the right of revenge was considered a higher right that the victim was expected …

Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson

Faculty Scholarship

Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this exercise …

Intrusive Law Reform, Katharine B. Silbaugh

Faculty Scholarship

Does law obstruct or facilitate the development of a democratic society? This is the subject of Mary Ann Glendon's recent book, A Nation Under Lawyers. It is also the subject of Anita Bernstein's Better Living Through Crime and Tort. Glendon takes the position that law obstructs, that "[p]remature and excessive resort to the courts... has been a disaster for the political health of the country."' Bernstein disagrees, saying that in many cases, law can facilitate democracy by encouraging citizens to educate themselves, engage in debate, and form communities.

Union Lawyer's Obligations To Bargaining Unit Members: A Case Study Of The Interdependence Of Legal Ethics And Substantive Law, The Symposium: The Lawyer's Duties And Liabilities To Third Parties, Russell G. Pearce

Faculty Scholarship

One of the largest groups of purported nonclients to whom lawyers might have obligations are members of bargaining units represented by unions. Despite the much publicized decline of labor unions, they have almost 16.4 million members. In addition, many workers are members of bargaining units represented by labor unions, but are not union members. The relationship of union lawyers to these millions of bargaining unit members, whether members of the union or not, is unclear. An examination of how this relationship influences and is influenced by labor law offers a fascinating case study of the synergy between the substantive law …

Capital Murder And The Domestic Discount: A Study Of Capital Domestic Murder In The Post Furman Era, Elizabeth Rapaport

Faculty Scholarship

In this Article I will challenge the tendency to discount the severity of domestic homicide, a phenomenon I call "the domestic discount." I will argue against automatic mitigation-the imputation of provocation or diminished capacity-simply or merely because the relationship" between victim and defendant is domestic or sexually intimate. I will argue that the traditional hot blood/cold blood dichotomy is an imperfect guide to the moral grading of homicide offenses. In particular, reliance on it has led to the under evaluation of the seriousness of some domestic homicides. It is my contention, or hypothesis, that the conclusions I draw from the …

The Local Government Boundary Problem In Metropolitan Areas, Richard Briffault

Faculty Scholarship

Local government boundaries play an important role in the governance of metropolitan areas by defining local electorates and tax bases and the scope of local regulatory powers and service responsibilities. Yet, the close association of local powers with local boundaries generates spillovers, fiscal disparities, and interlocal conflicts. Real local autonomy is constrained but the local government system fails to provide a means for addressing regional problems. Public choice theorists and political decentralizationists oppose regional governments because of the threat to local autonomy that would result from removing powers from local hands. Richard Briffault's solution to the metropolitan governance problem is …

What Does A White Woman Look Like? Racing And Erasing In Law, Katherine M. Franke

Faculty Scholarship

In significant ways, legal texts produce a narrative of national identity. They weave stories about who we are, what we are committed to, and what we expect of one another, individually and collectively. The concept of justiciability can be understood as a set of rules determining what stories courts are allowed to tell about who we are and who we can be. In this sense, Ronald Dworkin's account of judging as writing ongoing chapters in a chain novel provides a compelling conception of law as both describing where we have been and directing where we are going. If the salience …

Separating From Children, Carol Sanger

Faculty Scholarship

On September 1, 1939, in anticipation of the imminent German bombing of British cities, 150,000 children were assembled at the railway stations of London and sent throughout the day to "'destinations unknown'" in the English countryside. Mothers and children under five were evacuated together but school-age children were shipped out to rural billets in school groups, accompanied only by their teachers and civil defense volunteers. Forty years later, an observer remembered the day vividly:

[T]he mothers [were] trying to hold back their tears as they marched these little boys and girls in their gas masks into the centre …. The …