Law Commons^™

Judicial And Adminstrative Enforcement Of Individual Rights Under The National Labor Relations Act And Under The Labor-Management Relations Act Between 1935 And 1990 - An Historical And Empirical Analysis Of Unsettled Intercircuit And Intracircuit Conflicts, Willy E. Rice

Faculty Articles

This Article is concerned with exploring the extent to which both the National Labor Relations Act of 1935 and the Labor-Management Relations Act of 1947 have protected individual employees' rights in administrative and judicial proceedings.

"A Strange Liking": Our Admiration For Criminals, Martha Grace Duncan

Faculty Articles

This article explores noncriminals' admiration for the lawbreaker. Drawing on literature, films, history, and psychoanalysis, the article seeks to delineate and explain this paradox. Each part of the article adopts a different approach to the subject of admiration for criminals. Part II, "Reluctant Admiration," sets the stage by presenting evidence that such admiration, and conflict over it, are pervasive. Parts III and IV present two quite different strategies that noncriminals employ to cope with their inner conflict over criminality. Thus, Part III, "Rationalized Admiration," depicts noncriminals who express undisguised enjoyment in, and reverence for, criminals. These noncriminals justify their attraction …

Intimacy Outside Of The Natural Family: The Limits Of Privacy, Martha Albertson Fineman

Faculty Articles

In this paper I undertake a very pragmatic and focused consideration of whether it is possible to rework existing legal concepts of privacy in a way that would be ideologically compatible with dominant social norms in order to shield single mothers from excessive state regulation and supervision. I ultimately conclude that my desire to protect the decisionmaking autonomy and the dignity of poor and/or single mothers cannot be satisfied by resort to this area of law. At the constitutional level, this is so because notions of privacy are typically articulated as rights belonging to individuals, not family entities. And …

Images Of Mothers In Poverty Discourses, Martha Albertson Fineman

Faculty Articles

This Essay focuses on the construction of the concept of "Mother" in poverty discourses. It addresses the role of patriarchical ideology in the process whereby a characteristic typical of a group of welfare recipients has been selected and identified as constituting the cause as well as the effect of poverty. I am particularly interested in those political and professional discourses in which single Mother status is defined as one of the primary predictors of poverty. This association of characteristic with cause has fostered suggestions that an appropriate and fundamental goal of any proposed poverty program should be the eradication of …

Dutiful Justice (Book Review), Michael S. Ariens

Faculty Articles

Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditional biography of one of the most important public figures in the United States since the Civil War.

Although the author disclaims it, Honorable Justice is a defense of Holmes. Novick writes of some of Holmes’ faults, but too often Holmes’ human imperfections are defended as strengths. It appears that Novick was trying hard to defend Holmes from late twentieth century critiques. This defense of Holmes seems a misguided attempt to re(de)ify Holmes to a group of readers which will likely include a large proportion of skeptical, …

The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice For The 1990'S - A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

The Kenneth J. Hodson Chair of Criminal Law was established at The Judge Advocate General’s School on June 24, 1971. The chair was named after Major General Hodson, who served as The Judge Advocate General from 1967 to 1971. General Hodson retired in 1971, but immediately was recalled to active duty to serve as the Chief Judge of the Army Court of Military Review. He served in that position until 1974. General Hodson served over thirty years on active duty. During that time, he was active in the American and Federal Bar Associations, and he authored much of the military …

The Illusive Meaning Of The Term “Product” Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

The impact of Section 402A of the Restatement (Second) of Torts had far-reaching effects. The most noticeable of these effects was that strict liability was accepted as a cause of action in almost all cases involving defective products. As a result, there was an explosion of products liability litigation, and suits involving strict liability for defective products soon outnumbered all other tort cases.

Naturally, the vast number of lawsuits caused some confusion. Courts interpreted some terms of Section 402A to include individuals and events not originally mentioned, while other terms, which at first were thought to be clear and concise, …

Erisa: Nonwaivability Of Preemption, George Lee Flint Jr

Faculty Articles

Congress attempted to encourage the growth of private employee benefit plans by drafting the preemption provision in ERISA in an effort to develop the federal common law of employee benefits and discourage varied jurisdictional interpretations. States and federal courts have addressed the issue of preemption waivability with differing results. Some interpret the preemption clause as a waivable defense under a choice of law argument, while others treated preemption as a subject matter jurisdiction issue which cannot be waived.

ERISA’s express language clearly precludes state law causes of action under qualified ERISA plans. Furthermore, the legislative intent of the statute reiterates …

Teaching Transformative Jurisprudence (Film Review), Vincent R. Johnson

Faculty Articles

The Road to Brown is a film that deals with the transformative judicial ruling of Brown v. Board of Education. Many regard this case as the most important holding ever made by a United States court. The Road to Brown offers law professors a superb vehicle for bringing to the classroom the attention to persons, sense of history, and focus on litigation strategy that a great decision demands.

The Road to Brown provides a rich socio-legal-historical perspective on the events that culminated in the 1945 Supreme Court ruling barring racial segregation in public elementary schools. The program blends together photographs, …

Evidence, David A. Schlueter

Faculty Articles

This article addresses some of the more significant evidence cases decided by the Fifth Circuit during the survey period.' Before turning to the cases themselves, it is important to note at the outset that like other federal courts, the Fifth Circuit is generally not inclined to reverse a case on an evidentiary error. It should not be surprising then that in most of the cases which follow, the court implicitly deferred to the decision of the trial judge in deciding whether a certain piece of evidence was admissible.

Bankruptcy Policy: Toward A Moral Justification For Financial Rehabilitation For The Consumer Debtor, Richard E. Flint

Faculty Articles

The central justification for the debtor financial relief provisions of the Bankruptcy Code is founded in a natural law theory of morality. The law reflects reason and conscience, and those fundamental principles of fairness and humanitarianism form the moral dimension of the debtor relief provisions of the Bankruptcy Code. Historically, America has recognized an objective moral dimension to the bankruptcy process, and Congress has continually enacted legislation implementing its fresh start policy, which strives to obtain goals that mirror that moral fiber.

This fiber is composed of two separate but mutually dependent strands of values, intertwined into a coherent plan …

The Changing Intersection Of Environmental Auditing, Environmental Law And Enforcement Policy, George Van Cleve

Faculty Articles

This article examines the changing intersection of environmental auditing, environmental law, and enforcement policy. It will begin by reviewing the concept of environmental auditing and will then discuss sources of existing legal authority to require or encourage audits and their limitations. Next, the article examines EPA's existing audit policies and the rationale behind them. It will consider the relationship between these audit policies, enforcement policy, and voluntary disclosures of environmental violations, which has recently been reviewed by the Department of Justice. The article will then consider two alternative models which might be used to establish the role of environmental auditing …

The Power Of Language Beyond Words: Law As Invitation, Emily A. Hartigan

Faculty Articles

Law is an invitation to fuller life, more than a mere instrument of force, coercion, and death, which is imprinted within each person and which animates the ideas of our constitutions and statutes. Our laws should seek to reflect and be unified with God’s Law, and the process towards that end requires disclosure and trust, which, in turn, requires clarity of one’s whole person, which is achieved through prayerfulness.

Much of academia and society only recognizes the evil present in our law and society; however, where there is evil or negativity, goodness and that which is positive must have preceded …

Revitalizing Public Interest Lawyering In The 1990'S: The Story Of One Effort To Address The Problem Of Homelessness, Ronald Slye, Rebecca Arbogast, Roger L. Barnett, Leslie Kim Treiger

Faculty Articles

Despite annual exhortations to graduating law students to accept the responsibilities as well as the benefits of entering the legal profession, the prognosis for public interest law in the 1990's is uncertain. There have been significant decreases in federal and private funding of public interest organizations, sweeping changes in the composition of the federal judiciary, and a decline in the matriculation of public interest lawyers due to the increasing salary gap between the private and public sector. Together these factors raise serious questions about the future effectiveness of the traditional model of the full-time public interest litigator and call for …

Re-Imagining Childhood And Reconstructing The Legal Order: The Case For Abolishing The Juvenile Court, Janet Ainsworth

Faculty Articles

Although the institution of the juvenile court developed rather recently in our legal system, it is now quite firmly established: every American state and nearly every industrialized nation has a juvenile court system in place. The juvenile court is not without its critics, however. In this Article, Professor Janet Ainsworth recommends its complete abolition. Professor Ainsworth contends that society's current view of the nature of adolescence no longer comports with the turn-of-the century view that originally informed the development of an autonomous juvenile court, thus undermining the ideological legitimacy of a separate court system for juveniles. In addition, Professor Ainsworth …

: An Appraisal, Sidney Delong

Faculty Articles

Professor DeLong’s article provides a humorous observation of legal writing. His article on the colon and "colonization" presents a lighter side to the legal subject matters that can often prove to be a struggle to write as well as to read.

Research And Writing About Legal Writing: A Foreword From The Editor, Chris Rideout

Faculty Articles

The growing attention to the quality of legal prose is laudable. Yet more fundamental inquiry into legal writing and its associated activities, research and analysis, is needed as well. Before a more comprehensive attention to legal writing can be offered, we should understand more about what the characteristics of legal writing are, how it is written, and how it is used. This journal calls for the inquiry to begin and offers one forum for publishing the results. The inquiry into legal writing should not be conducted solely in response to perceived needs for reform. Legal prose itself, in its history, …

Community Institution Building: A Response To The Limits Of Litigation In Addressing The Problem Of Homelessness, Ronald Slye

Faculty Articles

This article draws upon the experiences of the Jerome N. Frank Legal Services Organization at Yale Law School to argue that, while litigation has a place in addressing both the problem of homelessness and the problems of the homeless, it must be placed within a broader context and supplemented by other, non-litigious, legal activity. Using as an example a lawsuit brought on behalf of homeless families in Connecticut, this article makes four observations which support the conclusion that litigation, used alone, is an ineffective means of addressing the problem of homelessness.

“Make The Ring In Your Mind” (Book Review), Emily A. Hartigan

Faculty Articles

aking All the Difference, by Martha Minow, promised to render the multiple differences of race, gender, disability, and orientation, part of a whole discourse on difference. In this, the book is a success. Yet, the contradiction which Minow’s ideas play with her genre is bothersome. It is not that her way of writing is not valuable. Minow is remarkably lucid. But what she names at the outset—a relational approach, with a sensitivity to boundaries—she does not deliver. That conundrum, and why it seems to be—but is not—the unavoidable dilemma of the gifted female scholar in law today, is worth investigating.

On The Road Of Good Intentions: Justice Brennan And The Religion Clauses, Michael S. Ariens

Faculty Articles

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect …

Banning The Buttons: Employer Interference With The Right To Wear Union Insignia In The Workplace, John W. Teeter Jr

Faculty Articles

The right for workers to wear union insignia without fear of retaliation in the workplace has been constricted, undermined, and jeopardized by judicial and National Labor Relations Board (“Board”) decisions. As a consequence, at least three problems arise: (1) litigation over this issue increases as the law becomes increasingly opaque; (2) workers are wrongfully denied the opportunity to proclaim their union sympathies; and (3) the Board and courts send an implicit message that the freedom to express union support is a second-class right that employers may override by offering a pretextual justification. This subordination of the right to wear union …

Military Justice For The 1990’S: A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

Noting that the American military justice system is often the subject of criticism and derision, the author explores the criticisms often leveled at the military justice system and targets a number of areas where the system seems most vulnerable, such as size and composition of the courts-martial, the role of the commander in the system and offers suggestions for reform.

On Shared Human Capital, Promotion Tournaments, And Exponential Law Firm Growth (Book Review), Vincent R. Johnson

Faculty Articles

Tournament of Lawyers: The Transformation of the Big Law Firm is part of the scholarly literature that seeks to understand the ongoing metamorphosis of the American legal profession. Authors Marc Galanter and Thomas Palay’s basic argument is that traditional law firm promotion practices make growth in firm size inevitable and such growth is linked to many recent developments. These developments include increased lateral hiring, the creation of tiered partnerships, and the collapse of entire firms. The exponential character of law firm growth means that inevitable structural modifications will be greater than in years past. At the same time, greater dissemination …