Law Commons^™

State-Interest Analysis And The Channelling Function In Family Law, Carl E. Schneider

Articles

I want to develop some themes I advanced in my article entitled State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social issues. In that article I noted that while courts and commentators have lavished effort on the fundamental-rights side of privacy law, they have scanted the state-interest side, thereby producing crucial weaknesses in that law. I felt that state~interest discussions in privacy cases often seemed to me unsatisfying. This is an attempt to see why. A major difficulty is that states tend to advance and courts tend to accept quite narrow specifications of a statute's …

Bioethics And The Family: The Cautionary View From Family Law, Carl E. Schneider

Articles

For many years, the field of bioethics has been specially concerned with how the authority to make medical decisions should be allocated between doctor and patient. Today the patient's power-indeed, the patient's right-is widely acknowledged, at least in principle. But this development can hardly be the last word in our thinking about how medical decisions should be made. For one thing, sometimes patients cannot speak for themselves. For another, patients· make medical decisions in contexts that significantly include more participants than just the patient and doctor. Now, as this conference demonstrates, bioethics is beginning to ask what role the patient's …

The Channelling Function In Family Law, Carl E. Schneider

Articles

On an occasion such as this, we are called to step back from our daily work to seek what Justice Holmes called a "liberal view" of our subject. Today, I propose to do so by exploring a function of family law that I believe is basic, that underlies much of family law, that resonates with the deepest purposes of culture but that is rarely addressed expressly-namely, what I call the "channelling function." As I will soon explain at length, in the channelling function the law recruits, builds, shapes, sustains; and promotes social institutions. My exploration of this topic will have …

Real Jurors' Understanding Of The Law In Real Cases, Alan Reifman, Spencer M. Gusick, Phoebe C. Ellsworth

Articles

A survey of 224 Michigan citizens called for jury duty over a 2-month period was conducted to assess the jurors' comprehension of the law they had been given in the judges' instructions. Citizens who served as jurors were compared with a base line of those who were called for duty but not selected to serve, and with those who served on different kinds of cases. Consistent with previous studies of mock jurors, this study found that actual jurors understand fewer than half of the instructions they receive at trial. Subjects who received judges' instructions performed significantly better than uninstructed subjects …

Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman

Articles

In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …

Child Protection Legal Process: Comparing The United States And Great Britain, Donald N. Duquette

Articles

The legal response to child maltreatment-or the risk of child maltreatment-varies greatly from society to society and has been little studied, in part because of the idiosyncrasies of community values, social organization, history and legal traditions.2 Cross-country comparison of child abuse and neglect is especially difficult because the ambiguity of social standards and the imprecision of terms used makes it difficult to define the specific behavior one is studying. Even though child maltreatment is widely prohibited, the definition of what actually constitutes child abuse and neglect is not clear within a particular country, much less uniform from one society to …

The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner

Articles

Law governing transfers of family property has long struggled with questions of survivorship in their many and varied forms. Important results can and regularly do turn on how such issues are resolved.

The Tragedy Of The Commons, Part Two, James E. Krier

Articles

This symposium is about the idea of "free market environmentalism" in general and the book Free Market Environmentalism, by Terry Anderson and Donald Leal,1 in particular. While I focus chiefly on Anderson and Leal's book, the discussion will necessarily involve the general idea of free market environmentalism as well. The conceit of my tide, which obviously derives from Garrett Hardin's celebrated essay on The Tragedy of the Commons,2 is this: Superficial differences aside, Hardin's essay and Anderson and Leal's book address the same fundamental problem of coordinating human behavior as it affects environmental quality. But both the essay and the …

Identifying The Best Interests Of The Child In Protection Proceedings: Nine Guidelines For The Child Advocate., Donald N. Duquette

Articles

Increasingly, judges appoint court appointed special advocates (CASAs) to represent children in child abuse and neglect proceedings. Like lawyers, CASAs are charged with looking out for the "best interests" of the child. Unfortunately, although the phrase "best interests" sounds noble, it provides little practical guidance for the child advocate.

On Integrated Pollution Control, James E. Krier

Articles

Integrated pollution control, or IPC, can be defined for now as an approach to environmental regulation that "seeks particularly to link air, water, and waste programs. Its concern is institutional changes that reduce total risk to the environment from pollutants." 8 This sounds remarkably appealing, which perhaps explains IPC's recurring popularity. As we shall see, it enjoyed a brief celebrity about twenty years ago, and it is once again in vogue-especially within the U.S. Environmental Protection Agency (EPA).

Is the Agency's recent interest in IPC a good thing? We worry that it is not. First of all, IPC has an …

The Burdens Of Educational Loans: The Impacts Of Debt On Job Choice And Standards Of Living For Students At Nine American Law Schools, David L. Chambers

Articles

American law students are borrowing large sums of money. For graduates at many schools, cumulative debts of $40,000 from college and law school have become the norm, and debts of $50,000, $60,000, and even more are common. The sums students are borrowing are much larger today than they were ten years ago, even after adjusting for increases in the cost of living. They have risen at a considerably faster pace than the starting salaries at small law firms and government agencies. They have even risen at a faster pace than the starting salaries in many large firms. The new pattern …

Reforming The Law Of Gratuitous Transfers: The New Uniform Probate Code, John H. Langbein, Lawrence W. Waggoner

Articles

In the mid-1980s the Uniform Law Commission undertook a landmark revision of the American law of gratuitous transfers. These reforms culminated in a drastically revised Uniform Probate Code ("UPC"). The revisions inspired the Albany Law Review to organize this symposium issue for the purpose of examining the 1990 UPC. In this introductory paper, we point to the main themes of the reform movement, discuss some of the traits and constraints of the uniform law process, and comment on some of the suggestions and insights that appear in the symposium articles.

Tales Of Two Cities: Aids And The Legal Recognition Of Domestic Partnerships In San Francisco And New York, David L. Chambers

Articles

Here are two stories. They are of the quite different ways that domestic partnerships of lesbian and gay couples have come to be recognized, for some purposes, in San Francisco and New York City. I tell the stories for their own sake, but with a particular focus on the role that AIDS played in the political process in each city.

Standards Of Persuasion And The Distinction Between Fact And Law, Richard D. Friedman

Articles

The invitation to respond in these pages to Gary Lawson's very interesting article, Proving the Law, was tempting enough. But what made it irresistible was Professor Lawson's comment that he is "addressing, with a brevity that borders on the irresponsible, subjects well beyond [his] depth." Now, that's the kind of debate I really like. Let me jump right in. A principal question raised by Lawson, which I find quite interesting, may be phrased in general, and purposefully ambiguous, terms as follows: Before an actor treats a proposition as a valid2 proposition of law, what standard of persuasion should that proposition …

Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman

Articles

David Schum has long been one of our keenest commentators on questions of inference and proof. He has been particularly interested in, and illuminating on, the subject of "cascaded," or multi-step, inference.' This is a subject of importance to lawyers, because most evidence at trial can be analyzed in terms of cascaded inference. Usually, the proposition that the fact finder2 might immediately infer from the evidence is not itself an element of a crime, claim, or defense. Most often, an extra inference would be required to jump from that proposition to a proposition that the law deems material. Thus, inference …

Evidentiary Rules And Rulings: The Role Of Treatises, Richard D. Friedman

Articles

I have devoted large gobs of time to work on a multi-author treatise on the law of evidence.' And before even one volume is published, I will devote further multiple gobs of time to the project-which, perhaps audaciously and perhaps merely foolishly, but with heredity and precedent on our side,2 we are calling The New Wigmore. Accordingly, I found the question posed by this symposium-Does Evidence Law Matter?-rather disquieting. If it is doubtful even whether the law of evidence matters, then how much can a treatise on the law of evidence matter, and how worthwhile can such a work be? …

Settling For A Judge: A Comment On Clermont And Eisenberg, Samuel R. Gross

Articles

Trial by Jury or Judge: Transcending Empiricism,1 by Kevin Clermont and Theodore Eisenberg, is not only an important article, it is unique. To most Americans, trial means trial by jury. In fact, over half of all federal trials are conducted without juries2 (including 31% of trials in cases in which the parties have the right to choose a jury3), and the proportion of bench trials in state courts is even higher.4 And yet, while there is a large literature on the outcomes of jury trials and the factors that affect them,5 nobody else has systematically compared trials by jury to …

Compensatory And Punitive Damages For A Personal Injury: To Tax Or Not To Tax, Douglas A. Kahn

Articles

Since the adoption in 1919 of the Revenue Act of 1918, damages received on account of personal injuries or sickness have been excluded by statute from gross income.1 This exclusion, which does not apply to reimbursements for medical expenses for which the taxpayer was previously allowed a tax deduction,2 is presently set forth in section 104(a)(2). One might expect that a provision having recently attained the ripe age of 75 years without change in its basic language would have a settled meaning. However, recent litigation under section 104(a)(2) bristles with unsettled issues. Does the exclusion apply to punitive damages? To …

An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman

Articles

The Supreme Court's decision in Batson v. Kentucky, and the extension of Batson to parties other than prosecutors, may be expected to put pressure on the institution of peremptory challenges. After a brief review of the history of peremptories, this article contends that peremptories for criminal defendants serve important values of our criminal justice system. It then argues that peremptories for prosecutors are not as important, and that it may no longer be worthwhile to maintain them in light of the administrative complexities inevitable in a system of peremptories consistent with Batson. The article concludes that the asymmetry of allowing …

The Model Employment Termination Act: Fairness For Employees And Employers Alike, Theodore J. St. Antoine

Articles

The Model Employment Termination Act (META), which state legislatures are expected to consider in the near future aims to prevent the unfair firing of Amer~ ican workers. At the same time, the Act aims to prevent devastating financial blows to American business. For both employees and employers, META offers streamlined dispute resolution procedures that would be simpler, less costly, and less time-consuming than the civil courts. The essence of the proposal is compromise-not as a matter of political expediency but as a practical, balanced accommodation of the competing worthwhile interests of employers and employees. Workers are entitled to be free …

Tax Policy And Panda Bears, Douglas A. Kahn, Jeffrey S. Lehman

Articles

In this article. Professors Kahn and Lehman argue that the concept of tax expenditure is flawed as a tool for measuring the propriety of tax provisions. It assumes the existence of on true and correct standard of federal income taxation that applies to all circumstances. To make that a assumption, the proponents of the concept implicitly make a particular moral claim about the relative importance of a wide range of values, including efficiency, consumption/savings neutrality, privacy, distributional equity, administrabiliy, charity, and pragmatism. They then measure a tax provision's "normalcy" exclusively by how it conforms to their Platonic concept of income. …

Tax Expenditure Budgets: A Critical View, Douglas A. Kahn, Jeffrey S. Lehman

Articles

During the past few months, Tax Notes has featured an extended discussion about the "normalcy" (or lack thereof) of accelerated depreciation. Two contributions to that discussion came from Professor Calvin Johnson of the University of Texas Law School, who disagreed with certain aspects of an article that Professor Kahn wrote in 1979. And the debate shows no sign of slowing down. The interchange over the details of accelerated depreciation offers a useful backdrop against which to consider a more general issue: the intellectual coherence of the tax expenditure budgets. The larger concept of tax expenditures was what motivated Kahn to …

Marital Property Rights In Transition, Lawrence W. Waggoner

Articles

The subject of "marital property rights" is very timely because those rights are in a state of transition. The term "marital property rights" covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse. This lecture is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that high-powered estate planners get involved in very much because intestate estates are usually fairly small. …

Spousal Rights In Our Multiple-Marriage Society: The Revised Uniform Probate Code, Lawrence W. Waggoner

Articles

The transformation of the American family constitutes one of the great phenomenons of the past two decades. The traditional Leave It to Beaver family no longer prevails in American society. To be sure, families consisting of the wage-earning husband, the homemaking and child-rearing wife, and their two joint children still exist. But divorce rates are astonishingly high and remarriage abounds. In fact, there is an increasing prevalence in the population of marriages that are more likely to end in divorce than others-marriages in which one or both partners were divorced before and marriages of couples who cohabited prior to marriage.

Translation As A Mode Of Thought, James Boyd White

Articles

I think that Clark Cunningham's article, The Lawyer as Translator, is a wonderful piece of work, full of life and interest and originality. I especially admire: his ability to make vivid to the reader the ways in which languages do truly differ, and differ beyond our efforts to bridge them-as he shows when he imagines an attempt to translate our most common professional terms into Chinese; his recoguition of the kind of force that our languages have over our minds, both as we see the world and as we tell stories about it; his sense that what we think of …