Law Commons^™

Legal Indeterminacy: Its Cause And Cure, Gary S. Lawson

Faculty Scholarship

Legal indeterminacy--the extent to which any particular legal theory cannot provide knowable answers to concrete problemsis one of the principal themes of modern jurisprudence. Indeterminacy plays an important role in debates concerning interpretation, the nature of legal obligation, and the character and possibilities of the rule of law.' Indeterminacy looms particularly large in debates concerning originalism as a method of constitutional interpretation. Some scholars insist that originalism resolves too few problems to be of much use,2 while others argue that originalism's indeterminacy is often overstated.'

Norms Of Communication And Commodification, Wendy J. Gordon

Faculty Scholarship

Around the laws that regulate information and communication swarm a host of related nonlegal norms: norms of secrecy, confidentiality, and privacy; of anonymity, source-identity, and citation; of quotation, paraphrase, and hyperbole; norms of free copying and norms of obtaining permission; norms of gossip and of blackmail. The articles by Saul Levmore and Richard McAdams provide useful windows on some of the ways these laws and norms interact. The two articles also provide insight into the comparative advantage possessed in some circumstances by law and by nonlegal norms, respectively, when information and communication are at issue. In my brief Comment I …

Law And Ethics In A World Of Rights And Unsuitable Wrongs, Susan P. Koniak

Faculty Scholarship

Law, ethics and morality. What distinguishes these concepts? What connects them? Those are my questions. My argument is this. There is a traditional understanding of the relationship between law and ethics, and that understanding is inadequate as description. While passing as description, the traditional understanding of the relationship between law and ethics is instead normative. The normative message in the traditional understanding is worthy of examination and ripe for critique. This Article offers an alternative method of understanding the relationship between law and ethics and a normative examination of the old and new.

A Missing Markets Theory Of Tort Law, Keith N. Hylton

Faculty Scholarship

This Article provides a framework for reconciling the tension between tort doctrine and economic theory, and for addressing the general failure of economically oriented theories to come to grips with doctrine at a detailed level. My claim is that tort doctrine should be viewed as a response to the incompleteness of markets, or more generally the problem of missing markets. Because of market incompleteness, some of the benefits as well as costs associated with activities will be shifted or "externalized" to third parties. Tort doctrine reflects sensitivity to the externalization of benefits and costs. It can therefore be understood only …

A False Start?: The Impact Of Federal Policy On The Genotechnology Industry, Maureen A. O'Rourke

Faculty Scholarship

Important scientific discoveries in the field of human genetics have been reported in the nation's major newspapers since the beginning of the decade, and these discoveries have given rise to a multi-billion dollar industry. Mr. Malinowski and Professor O'Rourke explore the impact of federal policy on the field and the resulting industry. They argue that federal policy in support of genetics research and development has not been followed by the introduction of regulatory and health policy necessary for the efficient and responsible commercialization of the industiy's products. As a consequence, Mr. Malinowski and Professor O'Rourke suggest, federal policy may have …

Confirmation And Claims Trading, Frederick Tung

Faculty Scholarship

The buying and selling of claims against companies in financial distress is not a new phenomenon. In times of financial distress, liquidity has always commanded a profit. However, the late 1980s and early 1990s saw the first significant trading of claims under Chapter 11 of the Bankruptcy Code, our relatively new and novel system of corporate reorganization. Traditionally scorned by the financial establishment, distress investment came into vogue with the "megabankruptcies" that followed in the wake of the leveraged buyout boom of the 1980s. With its prospects for huge profits, claims trading in Chapter 11 became a Wall Street staple. …

A Primer On The New Habeas Corpus Statute, Larry Yackle

Faculty Scholarship

The Antiterrorism and Effective Death Penalty Act (Pub. L. 104-132), signed into law on April 24, 1996, represents Congress' attempt to deal with the problems deemed to beset federal habeas corpus for state prisoners. This new statute addresses many important aspects of habeas law and practice and, as to them, now occupies the field to the exclusion of previous arrangements-whether developed as a construction of preexisting statutes or as interstitial decisional law. On the whole, however, Pub. L. 104-132 presupposes the basic framework now in place. This matter-of-fact point (that the new statute takes the preexisting habeas landscape as its …

Parent Education As A Distinct Field Of Practice: The Agenda For The Future, Peter Salam, Andrew Schepard, Stephen W. Schlissel

Hofstra Law Faculty Scholarship

The proliferation of educational programs for separated and divorcing parents has created an emerging field of practice. This article examines core questions of professional responsibility, accountability, standards, and practices that must be addressed to advance the development of the field.

Education programs for separated and divorcing parents have captured widespread attention. New programs are being established at a rapid pace. Increasingly, legislation and court rules require parents to attend an education program (Biondi, 1995). Newspapers, magazines, and television networks- including the New York limes, Wall Street Journal, Washington Post, Newsweek, CBS, NBC, and CNN-have all reported on what Time Magazine …

The Family Franchise: Elderly Parents And Adult Siblings, Margaret F. Brinig

Journal Articles

In this paper, I am going to concentrate on one family transition where we have established substantial legal barriers-that of emancipation. However, I will briefly allude to other "broken families," such as the divorcing family and the family divided by adoption.

As students of the family, we are preoccupied with divorce. We write about families in crisis and use the fabric of their lives worn thin and stretched to the breaking point to develop our ideas about what families are and even what they ought to be. In a way, of course, law teaching and the Socratic method drive us …

Corrections Day, John Copeland Nagle

Journal Articles

In July 1995, the House of Representatives established a Corrections Day procedure for fixing statutory mistakes. This article traces the history of the corrections day idea, beginning with suggestions offered by Justices Cardozo and Ginsburg many years apart. The article also recounts the early applications of Correction Day by the House. This article describes the problem of statutory mistakes: what they are, and who makes them. It explains that statutory mistakes do exist, regardless of how one defines mistake. Congress, agencies, and the courts all make mistakes, though the responsibility for them ultimately resides with Congress, the author of the …

Maybe A Lawyer Can Be A Servant; If Not…, Thomas L. Shaffer

Journal Articles

Consider the way we American lawyers learn about the relationship between the church and the law: This grand constitutional and legal order we propose to serve is unfolded before us and built up in our minds and hearts; it comes to us out of multi-volume sets of course books, and, like the gods of Canaan, it comes to us as religious: Thomas Jefferson said America was God's New Israel; David Hoffman, the grandfather of legal ethics in America, spoke of the law as a temple and of us lawyers as priests who served in the temple; Law Day speakers commonly …

The Market For Deadbeats, Margaret F. Brinig, F. H. Buckley

Journal Articles

This article outlines three explanations for why states seek migrants and tests them by references to 1985-90 interstate migration flows. On race-for-the-top theories, states compete for value-increasing migrants by offering them healthy economies and efficient laws. On vote-seeking theories, states compete for clienteles of voters, with some states seeking to attract and some to deter welfare- or tax-loving migrants. On deadbeat theories, states compete for high human capital debtors by offering them a fresh start from out-of-state creditors. Our findings support vote-seeking and deadbeat theories.

The Missing Chinese Environmental Law Statutory Interpretation Cases, John C. Nagle

Journal Articles

Environmental law and theories of statutory interpretation have developed side by side in the United States during the past twenty-five years. Many of the leading environmental law cases are also statutory interpretation cases. China is different. China has enacted many environmental statutes, often patterned after foreign laws such as those in the United States, but there are no Chinese environmental law statutory interpretation cases.

This article examines why there are no such cases, and what we may learn from that fact. I am indebted to the work of Professor Stewart, whose engaging article in this symposium issue combines three of …

Corporate Initiatives: A Second Human Rights Revolution?, Douglass Cassel

Journal Articles

This Essay examines the role of multinational corporations in protecting human rights around the globe. Part I analyzes the conduct of corporations, describes examples of corporations' involvement in human rights violations, and discusses the merits of greater responsibility of corporations. Part II suggests that the level of responsibility for a multinational corporation depends on the proximity of the corporation's operations to human rights violations, in combination with the seriousness of the violations, and proposes five gradations of responsibility. This Essay concludes that the evolving nature of the global economy is producing a shift in responsibilities from government to the private …

Reflections On Reves V. Ernst & Young: Its Meaning And Impact On Substantive, Accessory, Aiding Abetting And Conspiracy Liability Under Rico, G. Robert Blakey, Kevin P. Roddy

Journal Articles

In March 1993, accountants, attorneys and other professionals—who generally view RICO with suspicion—breathed a sigh of relief when they read the Washington Post: "People who lose money in thrifts and other businesses that go belly up because of wrongdoing can no longer use [RICO] to sue lawyers, accountants, or other advisers who played key roles in the enterprise." Unfortunately, this terse description of the Supreme Court's decision issued the previous day in Reves v. Ernst & Young may persuade professionals that they dropped an anchor in a tranquil safe-harbor, far from an exposure to the perils of the private enforcement …

How To Count To Fifteen: Determining The Jurisdictional Scope Of Title Vii: An Analysis Of Walters V. Metropolitan Educational Enterprises Inc., Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997). The author expected the Court to consider how the number of employees of a particular employer should be counted for for purposes of Title VII of the Civil Rights Act of 1964.

Civil Procedure: The Last Ten Years, Jay Tidmarsh

Journal Articles

In my view, the story of the last ten years in civil procedure is the slow but inexorable creep of ideas and solutions developed for complex cases into routine cases, and the continued effort of litigators and judges in complex cases to develop ideas and solutions that push the procedural envelope still farther out-thus setting the agenda for the next generation of procedural reform.

I do not want to overstate my claim. The procedures for a lawsuit are still basically the same: a short pleading stage followed by a lengthy discovery stage followed by a culminating event of trial. But …

On Lying For Clients, Thomas L. Shaffer

Journal Articles

For all of his occasional resort to deceit and falsehood, Faulkner's county-seat, Southern-gentleman lawyer, Gavin Stevens, was a virtuous person, a good person, and a truthful person. He and other moral worthies in good stories-many of them lawyers-have something to contribute to discussions, in legal ethics, on the issue of lying for clients.

On Teaching Legal Ethics In The Law Office, Thomas L. Shaffer

Journal Articles

Edward J. Murphy, my teacher, colleague, and friend, was as devoted as anyone at Notre Dame could be, to a Christian law school on this campus. He announced a personal and institutional claim, and he expressed his hope as well, when he told our graduating law class, in 1994, that this is "a school which publicly and without apology proclaims its religious roots."

And he was as interested as anyone could be in identifying those religious roots, and exploring the implications of them for the practice of law at the end of the twentieth century in the United States of …

Viewpoints From Olympus, Kent Greenawalt

Faculty Scholarship

This Essay examines the Supreme Court's treatment of content and viewpoint discrimination in Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Court adopted a very expansive approach to what constitutes viewpoint discrimination, the form of content discrimination most disfavored by the Constitution. The Court held that a public university could not decline to fund publication of Wide Awake, a magazine devoted to proselytizing for Christianity, if it funded other student publications. Justice Kennedy's opinion for the Court accepted the argument of the sponsors of Wide Awake that the University had engaged in …

Edward J. Murphy: A Professor For All Seasons, David T. Link

Journal Articles

Ed Murphy taught more Notre Dame law students than any other professor in the history of the University. To his students, he was more than a teacher; he was mentor and even legend. A mainstay at the Law School, Professor Murphy died in July of last year at the age of sixty-eight.

I was privileged to be his student, his colleague and his friend. I miss him very much. We all do. But, of course, his example lives on. He continues to be a part of the great Notre Dame spirit. Our recently appointed contracts professor tells me that every …

Edward J. Murphy, Catholic Scholar, Charles E. Rice

Journal Articles

Permit me to explain, with some background, why Edward J. Murphy was an admirable Catholic man and why I and many others are in his debt for his friendship and example.

Preferential Trade Agreements: The Wrong Road, Jagdish N. Bhagwati

Faculty Scholarship

The nature of FTAs is to offer free trade only to members, not to non-members. Thus, FTAs are two-faced: they ensure free trade for members and (relative) protection against non-members. First-year students of international economics would be asked to shift to a different field if they could not grasp this elementary and elemental distinction, and yet today's politicians imagine themselves to be statesmen endorsing free trade when they embrace these inherently discriminatory PTAs.

As PTAs proliferate, the main problem that arises is the accompanying proliferation of discrimination in market access and a whole maze of trade duties and barriers that …

The Legal Environment Of International Finance: Thinking About Fundamentals, Merritt B. Fox

Faculty Scholarship

The huge increase in cross border capital flows over the last two decades has profoundly important implications for society in general and the law in particular. These flows give rise to a set of legal problems that are sufficiently distinct and coherent to constitute a legal field of their own. Confirming this observation is the development of a specialized legal practice whose members spend the bulk of their time working on such transactions. Nevertheless, a law school course in international finance is a rarity, even at the schools that train most of the students who ultimately join this practice.

The …

A Tribute To Jerry Israel: A Friend With A Messy Office, Debra A. Livingston

Faculty Scholarship

My legal education began with Jerry Israel.

During the fall of 1977, I was assigned to his section of Criminal Law. From the very first day of class, Jerry made it clear to us that the problems of crime and punishment were at once profoundly important and elusively difficult. Jerry taught from judicial opinions in the classic Socratic mode. Each day we were forced to grapple with the perplexing manner in which the language of precedent, so comforting when first encountered in the frame of an opinion, turned to quicksilver when tested against new cases, real or hypothetical.

Religious Liberty And Democratic Politics, Kent Greenawalt

Faculty Scholarship

Some time ago, President Clinton talked to a gathering of religious journalists about abortion. He said that he did not believe that the biblical passages often cited by those who are "pro-life" indicate· clearly that abortion is wrong and should be prohibited. The reasons many people have for wanting abortion to be prohibited, or for allowing abortion, relate to their religious convictions. These people, for the most part, regard it as perfectly appropriate that religious perspectives help determine public policy on abortion in the United States. Others object. They say that the religious views of some people should not be …

Interview With Innis Christie In Dalhousie Law School: An Oral History, Ronald St. John Macdonald

Innis Christie Collection

Innis M. Christie

Born: Amherst, Nova Scotia, 8 November 1937

Legal Education: Dalhousie, Cambridge University, and Yale Law School

Areas of specialization: Labour Law, Professional Responsibility and Legal Ethics, Administrative Law

Service on the full-time faculty: 1971-

Interview: Monday, 5 December 1988, Thursday, 15 December 1988, Thursday, 21 December 1988

Corporate Governance And Economic Efficiency: When Do Institutions Matter?, Ronald J. Gilson

Faculty Scholarship

Until the 1980s, corporate governance was largely the province of lawyers. It was a world of specific rules – more or less precise statutory requirements governing shareholder meetings, the election of directors, notice requirements and the like – that were essentially unrelated to what corporations actually do. From this perspective, the corporation's productive activity was simply a black box onto which standard governance structures were superimposed with little effect on what took place within. Corporate law was "trivial" or, as Bayless Manning so evocatively portrayed it, simply "great empty corporation statutes – towering skyscrapers of rusted girders internally welded together …

Venture Capital And The Structure Of Capital Markets: Banks Versus Stock Markets, Ronald J. Gilson, Bernard S. Black

Faculty Scholarship

The United States has many banks that are small relative to large corporations and play a limited role in corporate governance, and a well developed stock market with an associated market for corporate control. In contrast, Japanese and German banks are fewer in number but larger in relative size and are said to play a central governance role. Neither country has an active market for corporate control. We extend the debate on the relative efficiency of bank- and stock market-centered capital markets by developing a further systematic difference between the two systems: the greater vitality of venture capital in stock …

The Independent Counsel Statute: Bad Law, Bad Policy, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The Watergate scandal-and the crisis in public confidence in government it spawned-left us many legacies, one of which is the Independent Counsel ("IC") statute. Over twenty years after the fact, the "lessons" of the scandal itself continue to be the dominant reference. It is time to evaluate the "lessons" of Watergate's legacies and, in particular, the IC mechanism.