Law Commons^™

Reflections On Regional Human Rights Law, Gabriel M. Wilner

Scholarly Works

The principal purpose of the Colloquium, as can be seen from the great attention given to the papers presented by the second panel, was to discuss the uses of customary international human rights law in the defense of human rights before national courts. More generally, these discussions focused on the effectiveness of customary international human rights rules in influencing legislative and policy-making, administrative decisions and, particularly, judicial adjudication, at international and national levels. The initial and wider question of the feasibility of using custom as a source of human rights rules formed the underlying aspects of the debates in the …

Sources Of International Law, Louis B. Sohn

Scholarly Works

To summarize, States can agree on international law begin made in any way they wish. Once they agree on a method, the matter is over. As I have pointed out, every few y ears we invent a new method; there is no end to ingenuity of human beings. by the year 2000, there might be one or two more methods. We are still applying the 19th century rule that international law is made by the community of states, but in every generation the community has been able to invent new methods for crystallizing international law. We finally have accepted the …

Original Intent And Article Iii, Michael L. Wells, Edward J. Larson

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Article III of the United States Constitution sets limits on the ability of the legislature to expand or contract the jurisdiction of the federal courts. The Supreme Court has generally held that Article III's restraints on the power of the legislature to restrict the jurisdiction of the federal courts are few and extremely permissive. Many scholars, however, argue that Article III imposes some strong limitations on the legislature's ability to define federal jurisdiction. Strangely, both sides of the debate rely on originalist arguments. This Article argues that reliance on the Framers' intent to resolve issues of federal courts law is …

The Georgia Death Penalty Habeas Corpus Reform Act Of 1995, Donald E. Wilkes Jr.

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On April 10, 1995, Gov. Zell Miller signed into law Georgia's Death Penalty Habeas Corpus Reform Act of 1995. The Act is premised upon the following findings and determinations of the General Assembly: that through direct appeal, sentence review, and habeas corpus the state now provides persons sentenced to death "adequate opportunities" to assert their constitutional rights; that habeas corpus proceedings should not be used by persons sentenced to death "solely as a delaying tactic under the guise of asserting rights;" and that "strict compliance" with habeas corpus procedures "will prevent the waste of limited resources and will eliminate unnecessary …

Commerce Clause Restraints On State Taxation After Jefferson Lines, Walter Hellerstein, Michael J. Mcintyre, Richard D. Pomp

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The Supreme Court's 1977 decision in Complete Auto Transit, Inc. v. Brady signaled a paradigmatic shift in the Court's approach to state tax adjudication under the dormant Commerce Clause. In Complete Auto, the Court repudiated the formalistic school of interpretation that once had governed Commerce Clause analysis of state taxation because it bore ‘no relationship to economic realities.’ In its place, the Court embraced a decisional framework that ‘considered not the formal language of the tax statute but rather its practical effect.’ In furtherance of this objective, the Court suggested a four-part test to guide the constitutional analysis of state …

Customary (And Not So Customary) International Environmental Law, Daniel M. Bodansky

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In this article, Professor Bodansky examines the creation and importance of customary international law. He suggests that the debate over the legal status of any given norm may be misplaced. Instead, he suggests that international lawmakers should spend their time and energy incorporating norms, regardless of their true status, into "concrete treaties and actions." The author begins his discussion by providing a working definition of customary international law. He asserts that such law can be based not just on uniformities of state behavior, as is traditionally held, but also on regularities in behavior. Thus, customary international law can be formed …

Idealism And The Individual Woman: Reading Bessie Head's A Question Of Power, Paul J. Heald

Scholarly Works

In A Question of Power, South African exile Bessie Head graphically illustrates the relevance of gender difference to religion, political philosophy, and human rights. At first glance, the novel is a startling interior view of the psychosis that can result from constant alienation. The madness so painfully described, however, is portrayed as specific to women. And the road from madness -- the rejection of idealism, the rejection of universalism, and the rejection of power -- carries an important message to those seeking to understand the various feminist perspectives on human rights and spirituality. In Head's view, the recognition of …

From Legal Transplants To Legal Formats, Alan Watson

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Most of the time rulers and governments in the Western world as a whole were little interested in making private law. Instead, the task devolved upon some group of the legal elite who became in effect subordinate law makers without having been given power to make law. Thus, Roman jurists as such were private individuals with no ties to government: they made law when their opinions came to win approval from other jurists. English judges in the Middle-Ages and later were appointed to decide cases: the tradition long was that they found the law but did not make it. Continental …

Balancing Federalism And Free Markets: Toward Renewed Antitrust Policing, Privatization, Or A "State Supervision" Screen For Municipal Market Participant Conduct, James Ponsoldt

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The past decade has witnessed an historic rejection of state control of markets in eastern Europe. Expansion of domestic antitrust immunity policy toward municipal businesses based upon federalism concerns, however, which occurred during the same period, has fostered autonomous governmental control of markets. The judicial application of the Parker doctrine to local government has tended to contradict the premise underlying several generations of U.S. foreign policy designed to support emerging competitive market economies outside the country. Academic analysis of the Parker doctrine during the 1980s was heated and creative. A number of commentators, with varying viewpoints, have addressed the bases …

Positivism And Antipositivism In Federal Courts Law, Michael Wells

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What is the proper role of rules in federal courts law? Some scholars associated with the Legal Process assert that rules are unimportant here. They believe that the values of principled adjudication and reasoned elaboration should take precedence over the making and application of rules. The area is, in the jargon of jurisprudence, "antipositivist." Others maintain that rules do, or at any rate should, count heavily in federal courts' decisionmaking. In this Article, I argue that Legal Process scholars are right to spurn formalism in most parts of federal courts law. But the Legal Process model of federal courts law …

Lawyers As Exchange Engineers In Commerce: An Empirical Overview, Sandra M. Huszagh, Fredrick W. Huszagh

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This article empirical explores the exchange relationship between lawyers and their clients with particular attention on the variables of experience and practice specialty. The lawyers' perceptions of client relationships are preliminarily analyzed in terms of their discrete or relational properties and their distribution within experience segments within the firm. Enriched understanding of these matters can assist both lawyers and their clients in crafting more efficient and effective exchange relationships here viewed as critical to commercial activities.

Law And Literature Defining Itself, Paul J. Heald

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Earlier this spring, the University of Chicago Law School convinced Martha Nussbaum, University Professor of Philosophy, Comparative Literature, and Classics at Brown University, to join its faculty to teach law and literature. At Michigan and Duke, James B. White and Stanley Fish have long held joint appointments in their respective law schools and English departments. What use can law schools possibly have for literary critics? Although over 60 law schools, including Georgia, currently offer a class in law and literature, the focus of this interdisciplinary enterprise remains somewhat fuzzy.

Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells

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Constitutional Torts is, in part, a response to our sense that the upper level curriculum could be improved by courses that bring together areas of doctrine that are often studied in isolation. We think there is substantial value in bringing together seemingly disparate areas of doctrine that bear on a common real-world problem. Students benefit from learning how to put together concepts from different substantive areas in order to solve problems they will face in practice.

Medea And The Un-Man: Literary Guidance In The Determination Of Heinousness Under Maynard V. Cartwright, Paul J. Heald

Scholarly Works

In particular, this Essay brings Dante, C.S. Lewis, and Euripides to bear on a discrete problem examined by the U.S. Supreme Court in Maynard v. Cartwright. Reading Dante's Inferno, Lewis's Perelandra, and Euripides's Medea provides guidance in responding to the Court's mandate that the state channel discretion in capital sentencing. Specifically, these works imply an ethical framework for determining what constitutes an "especially heinous, atrocious, or cruel" murder. Other literary texts are certainly relevant to Maynard. This Essay, however, is not an attempt to survey comprehensively and distill the insights provided by all relevant material, but rather …

Busting The Hart & Wechsler Paradigm, Michael L. Wells

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Federal Courts law was once a vibrant area of scholarship and an essential course for intellectually ambitious students. Now its prestige has diminished so much that scholars debate its future in a recent issue of the Vanderbilt Law Review, where even one of its champions calls it (albeit in the subjunctive mood) a “scholarly backwater.” What, if anything, went wrong, and what should Federal Courts scholars do about it? In his contribution to the Vanderbilt symposium, Richard Fallon defends the reigning model of Federal Courts law, an approach to jurisdictional issues that dates from the publication in 1953 of Henry …

The Eeoc, The Courts, And Employment Discrimination Policy: Recognizing The Agency's Leading Role In Statutory Interpretation, Rebecca White

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This Article explores whether a delegation to the EEOC of law-interpreting authority may be found under Title VII, the ADEA, or the ADA, despite the agency's lack of full enforcement authority under these statutes. If the EEOC possesses such authority, it, not the courts, will decide many of the difficult issues left unresolved by Congress under the 1991 Civil Rights Act, the ADA, and other statutes administered by the agency. I easily conclude the EEOC has been delegated law-interpreting power under both the ADEA and the ADA. The authority to issue legislative rules, in the context of these statutory schemes, …

Economics As One Of The Humanities; An Ecumenical Response To Weisberg, West, And White, Paul J. Heald

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The Law and Literature movement seems to have a deadly adversary: the Law and Economics movement. Several of the most respected literary lawyers have recently argued that economic discourse subverts the goals of humanistic scholarship. Richard Weisberg decries, for example, “the insurgency of ‘free market’ economics, a disgracefully self-serving system of ethical reductionism and human evasion [that has] attracted masses of practitioners away from the essence of their fields, away from the passions, the hopes, the reality of the world around them.” Robin West has criticized “economic man” for his “empathic impotence,” and has suggested replacing him with a more …

Refusals To Deal In "Locked-In" Health Care Markets Under Section 2 Of The Sherman Act After Eastman Kodak Co. V. Image Technical Services, James F. Ponsoldt

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In the Kodak context, several common health care provider practices, previously challenged with varying results under traditional antitrust analysis, may be reexamined to focus upon the effect of refusals to deal in a secondary market with potential competitors in that secondary market. This Article focuses on three such practices: (1) the non-immunized revocation of hospital staff privileges for other than legitimate, quality-of-care motives; (2) the denial of hospital privileges to differentially credentialed, state-licensed providers; and (3) the closure of membership in comprehensive health care plans, such as preferred-provider organizations, combined with a refusal to deal with nonmembers. These practices should …

The End Of Roman Juristic Writing, Alan Watson

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The traditional date for the end of classical Roman law is 235 when the emperor Alexander Severus was murdered, or slightly later with the death of Modestinus, the last of the great known jurists. Thereafter, few original juristic books were written, and it is widely but not universally believed that a decline in legal standards began almost at once.

For many scholars there seems to exist a connection, sometimes simply implicit, between the failure of jurists to write new books, and a decline in legal standards. I should like to suggest there was a different reason for jurists ceasing to …

The Impact Of The Garcia Decision On The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen

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In National League of Cities v. Usery, the Supreme Court recognized a strong state-sovereignty-based limit on Congress's exercise of its commerce power. In Garcia v. San Antonio Metropolitan Transit Authority, however, the Court overruled National League of Cities, relying in part on past difficulties in trying to distinguish between protected state “governmental” activities and unprotected state “proprietary” activities. In the wake of Garcia, commentators have urged that its reasoning undermines the Court's longstanding exemption of state proprietary activities from dormant Commerce Clause challenge under the so-called “market-participant” doctrine.

In this article, Professor Dan Coenen refutes this argument by showing that …