Law Commons^™

Concluding Thoughts: Bioethics In The Language Of The Law, Carl E. Schneider

Book Chapters

What happens when the language of the law becomes a vulgar tongue? What happens, more particularly, when parties to bioethical disputes are obliged to borrow in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings? How suited are the habits and tastes and thus the language of the judicial magistrate to the political, and more particularly, the bioethical, questions of our time? We must ask these questions because, as the incomparable Tocqueville foresaw, it has become American practice to resolve political—and moral—questions into judicial questions. We now reverently refer to the Supreme Court as the great …

Introduction: Performing Latcrit, Robert S. Chang, Natasha Fuller

Faculty Articles

This introduction examines the four articles in this cluster on LatCrit praxis. The four articles can be seen as case studies that explore different aspects of LatCrit praxis. Pedro Malavet examines the role literature and the arts can play as a form of antisubordinationist practice. Nicholas Gunia focuses on Jamaican music as a particular site of antisubordinationist practice, showing us that resistance comes in many forms and that LatCrit practitioners must have a broad theory for social change that is not limited to legislatures, courtrooms, classrooms, and law reviews. Alfredo Mirande Gonzalez employs personal narrative to tell us how he …

Race, Reason And Representation, Tayyab Mahmud

Faculty Articles

This is a review essay based on Uday Singh Mehta, Liberalism and Empire: A study in Nineteenth-Century British Liberal Thought (Chicago: The University of Chicago Press 1999). It evaluates the entanglement of liberalism with colonialism to highlight many fundamental contradictions inherent in projects of modernity and the way universal claims are often bound by particularistic imperatives. Liberalism could reconcile its agenda of liberty and representation with colonial subjugation only by positing race as the grounds for eligibility to rights. With the project of neo-liberal restructuring of the world underway, it is useful to recall the disjunction between the theory and …

Egregious Inaction: Five Years After 'Of Life And Death', Jocelyn Downie

Articles, Book Chapters, & Popular Press

In November 1999, the Standing Senate Committee on Social Affairs, Science and Technology was authorized to examine and report upon developments since the release of Of Life and Death, the final report of the Special Senate Committee on Euthanasia and Assisted Suicide. A subcommittee to update Of Life and Death was therefore established. On February 14, 2000, I participated in the first panel of witnesses before this subcommittee. In light of the subcommittee's mandate, I set myself the following two tasks: first, to update the legal status sections of Of Life and Death by reporting on any changes to the …

The Law And Politics Of "Might": An Internal Critique Of Hutch's Hopeful Hunch, Richard Devlin Frsc

Articles, Book Chapters, & Popular Press

Some of my friends tell me that, as a general proposition, as men get older they become more conservative, but as women get older they become more radical. Allan Hutchinson's new book, It's All in the Game, tells us little about the latter, but it does seem to confirm the former. For almost twenty five years, Allan Hutchinson has been a very high profile "North American crit." There is little doubt that he has been Canada's most prolific and outspoken critical legal scholar. He has been a master trasher, combining powerful critical analytical skills with a wicked wit and …

The Virtue Of Ordered Conflict: A Defense Of The Adversary System, David R. Barnhizer

Law Faculty Articles and Essays

My underlying thesis is that American society is in increasing danger of falling victim to the tendencies against which Hobbes warned, and that we need to understand and deal with the ultimate implications this holds for our political community. Otherwise, we risk ending up with a severe case of ideological balkanization that will undermine and weaken our social system. My concern is that we are well on the way to a state of ideological civil war. If we succumb further it will mean a political culture in which there is little real communication, but only destructive vilification, jockeying for political …

Brief Against Homophobia At The Bar: To Law School Dean-Mid 1960s, Joel J. Finer

Law Faculty Articles and Essays

In the mid-1960s, the author addressed the following "brief" to the Dean of a major law school on behalf of a law student, successfully urging that the Dean not report the student's homosexual activities to the state Bar committee which screened applicants for "good moral character." My own view, to be presently elaborated, is that to deprive a law student of the well-earned fruits of his labor on the basis of psychiatric findings that he might, at some future time commit a homosexual act that might become public and might merely embarrass a client, employer or associate, would manifest gross …

Why Does The Criminal Law Care What The Layperson Thinks Is Just? Coercive Versus Normative Crime Control, Paul H. Robinson

All Faculty Scholarship

THE criminal law codification movement of the 1960s and 70s was guided by instrumentalist principles designed to reduce crime, rather than by retributivist notions of giving offenders deserved punishment. The Model Penal Code, which served as a model for nearly all of the period's code reforms, was explicit on the point: The Code's "dominant theme is the prevention of offenses" and its "major goal is to forbid and prevent conduct that threatens substantial harm." Yet, as Part I of this Article will show, even from such a staunchly instrumentalist code came a criminal law that defers to laypersons' shared intuitions …

A Normative Analysis Of New Financially Engineered Derivatives, Peter H. Huang

Publications

This Article analyzes whether the introduction of new derivative assets makes a society better or worse off. Because trading such non-redundant derivatives produces new distributions of income across time and over possible future contingencies, individuals can utilize such financial instruments to hedge risks not possible before the introduction of these assets. Thus, it may seem that new derivatives unambiguously benefit society. In fact, introducing sufficiently many new derivatives completes asset markets. Asset markets are complete if trading on them can attain every possible payoff pattern of wealth across time and over possible future contingencies. The first fundamental theorem of welfare …

Law And Values In Governance: The Singapore Way, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

The article examines the role of law and the legal system in catalysing Singapore's development success. It argues that there is a dichotomy in the approach with regard to commercial law and law relating to individual freedom and rights and civil society. Universalism characterises the treatment of commercial laws while cultural relativism and a communitarian-based understanding of rights and obligations are features of the law relating to the rights of the individual. Instrumentalism, driven by a particularistic 'communitarian' political philosophy underpinned by strong Confucianist values, is very much motivated by the need for good governance as a prerequisite for economic …

Principles Of Internet Privacy, Fred H. Cate

Articles by Maurer Faculty

The definition of privacy developed by Brandeis and Warren and Prosser, and effectively codified by Alan Westin in 1967 - the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others - worked well in a world in which most privacy concerns involved physical intrusions (usually by the government) or public disclosures (usually by the media), which, by their very nature, were comparatively rare and usually discovered.

But that definition's exclusive focus on individual control has grown incomplete in a world in which most privacy concerns involve …

Redressing The Imbalances: Rethinking The Judicial Role After R. V. R.D.S., Richard Devlin Frsc, Dianne Pothier

Articles, Book Chapters, & Popular Press

The decision of the Supreme Court of Canada in R. v. R.D.S. dealt with whether a trial judge's comments, about the interactions between police officers and "non-white groups", gave rise to a reasonable apprehension of bias in the circumstances. They strongly criticize the contrary ruling of the dissent as inappropriately drawing a false dichotomy between decisions based on evidence and decisions based on evidence and decision based on generalizations, and as improperly ignoring social context with an unwarranted confidence in the ideology of colour blindness. While more supportive of the majority's analysis, the authors also find cause for concern, with …

Reducing The Democratic Deficit: Representation, Diversity, And The Canadian Judiciary, Or Towards A "Triple P" Judiciary, Richard Devlin Frsc, A. Wayne Mackay, Natasha Kim

Articles, Book Chapters, & Popular Press

The authors review the current structures for judicial appointments in Canada and provide statistical information about the results of these mechanisms in respect to diversity of representation on the courts. They are also critical of the fairness and openness of judicial appointments processes. After examining several variants of the dominant liberal view of law and of judges, the authors proffer and articulate a neo-realist theory of law and what they term a "bungee cord theory of judging." According to the former, law is inevitably a form of politics; according to the latter, judges are unavoidably political actors. In consequence, the …

The Bank Manager Always Rings Twice: Stereotyping In Equity After Garcia, Richard Haigh, Samantha Hepburn

Articles & Book Chapters

Stereotyping is an inevitable part of human interaction. Everyone is judged, to some extent, according to individual perception, with reference to such factors as physical appearance, social position, marital status, language facility and ethnicity. It is not possible to eradicate stereotyping because it is a natural, automatic - sometimes instinctive - human response. In a legal context, however, there is a need for some mechanisms to control the degree to which stereotyping influences judicial decision-making so as to ensure that justice is administered in as neutral and impartial a manner as possible. Whether it be in the determination of facts …

Expanding Directions, Exploding Parameters: Culture And Nation In Latcrit Coalitional Imagination, Elizabeth M. Iglesias, Francisco Valdes

Articles

No abstract provided.

Disabling Certitudes: An Introduction To The Role Of Mythologies Of Conquest In Law, Jo Carrillo

Faculty Scholarship

No abstract provided.

Expressive Law And Oppressive Norms: A Comment On Richard Mcadams's "A Focal Point Theory Of Expressive Law", Amy L. Wax

All Faculty Scholarship

No abstract provided.

Dealing With Histories Of Oppression: Black And Jewish Reactions To Passivity And Collaboration In William Styron's Confessions Of Nat Turner And Hannah Arendt's Eichmann In Jerusalem, David Abraham, Kimberly A. Mccoy

Articles

No abstract provided.

Shifting Power For Battered Women: Law, Material Resources, And Poor Women Of Color, Donna Coker

Articles

No abstract provided.

A Different Kind Of Sameness: Beyond Formal Equality And Antisubordination Strategies In Gay Legal Theory, Nancy Levit

Faculty Works

Gay legal theory is at a crossroads reminiscent of the sameness/difference debate in feminist circles and the integrationist debate in critical race theory. Formal equality theorists take the heterosexual model as the norm and then seek to show that gays, lesbians, bisexuals, and transsexuals - except for their choice of partners - are just like heterosexuals. Antisubordination theorists attack the heterosexual model itself and seek to show that a society that insists on such a model is unjust. Neither of these strategies is wholly satisfactory. The formal equality model will fail to bring about fundamental reforms as long as sexual …

Critical Race Theory And Autobiography: Can A Popular Genre Make A Serious Academic Contribution?, Sylvia R. Lazos

Scholarly Works

This Essay reviews “Notes of a Racial Caste Baby, Colorblindness and the End of Affirmative Action” by Bryan K. Fair, “How Did You Get to Be a Mexican? a White/Brown Man's Search for Identity” by Kevin R. Johnson, and “To be an American: Cultural Pluralism and the Rhetoric of Assimilation” by Bill Ong Hing. This Essay examines the potential contributions each book makes to legal scholarship and the popular press. The Essay first describes how each author uses the autobiographical narrative and what these narratives accomplish. The Essay examines each book's legal agenda and assesses how well each author achieves …

Globalization Or Global Subordination? Latcrit Links The Global To The Local And The Local To Global, Sylvia R. Lazos

Scholarly Works

Professor Lazos introduces the fifth and final cluster of this LatCrit IV Symposium, International Linkages and Domestic Engagement, which includes five important contributions to LatCrit IV's focus on global issues by Professors Timothy Canova, Gil Gott, Tayyab Mahmud, Ediberto Roman, and Chantal Thomas. The introduction below sketches out, by way of illustration only, how some of the work already presented in this symposium cultivates the linkage between local racial formation and global market dynamics. The introduction then explores LatCrit's contribution to the critique of globalism.

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

Scholarly Works

Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years …

Women Defenders On Television: Representing Suspects And The Racial Politics Of Retribution, Joan W. Howarth

Scholarly Works

This Essay is about Ellenor Frutt, Annie Dornell, Joyce Davenport, and other women criminal defense attorneys of prime time television. It examines how high-stakes network television presents sympathetic stories about women working as criminal defense attorneys while simultaneously supporting the popular thirst for the harshest criminal penalties. Real women who choose to represent criminal defendants are fundamentally out of step with angry and unforgiving attitudes toward crime and criminals. Indeed, women defenders have chosen work that puts them in direct opposition to the widespread public willingness to incarcerate record numbers of Americans, often young African-American and Latino men, for longer …

Making Biomedical Policy Through Constitutional Adjudication:The Example Of Physician-Assisted Suicide, Carl E. Scheider

Book Chapters

Throughout most of American history no one would have supposed biomedical policy could or should be made through constitutional adjudication. No one would have thought that the Constitution spoke to biomedical issues, that those issues were questions of federal policy, or that judges were competent to handle them. Today, however, the resurgence of substantive due process has swollen the scope of the Fourteenth Amendment, the distinction between federal and state spheres is tattered, and few statutes escape judicial vetting. Furthermore, Abraham Lincoln's wish that the Constitution should "become the political religion of the nation" has been granted. "We now reverently …

A Proposal For Comparative Responsibility Analysis In Comparative Negligence Jurisdictions, Joel Leslie Terwilliger

LLM Theses and Essays

Part II of this thesis discusses the common law background of the assumption of risk and how it fits into the scheme of negligence principles as an affirmative defense. Part II also examines the background of assumption of risk and parallels its development with contributory negligence principles. Part III looks at how the assumption of risk has been redefined and narrowed in its application as comparative fault principles gained favor. It includes an examination of statutory erosion and in modern judicial activism. Next, Part IV examines how the assumption of risk, particularly the secondary form, conflicts with comparative fault and …

Institutionalizing Economic Justice: A Latcrit Perspective On The Imperatives Of Linking The Reconstruction Of "Community" To The Transformation Of Legal Structures That Institutionalize The Depoliticization And Fragmentation Of Labor/Community Solidarity, Elizabeth M. Iglesias

Articles

No abstract provided.

Whiteness And Remedy: Under-Ruling Civil Rights In Walker V. City Of Mesquite, Martha R. Mahoney

Articles

No abstract provided.

Capital Punishment As Human Sacrifice: A Societal Ritual As Depicted In George Eliot's Adam Bede, Roberta M. Harding

Law Faculty Scholarly Articles

The purpose of this article is to identify, describe, and analyze the historic and contemporary connection between the practices of capital punishment and human sacrifice. After describing how human sacrifice constitutes an integral component of capital punishment, it will be argued that the institutionalization of this antiquated barbaric ritual, vis-a-vis the use of capital punishment, renders the present use of the death penalty in the United States incompatible with "the evolving standards of decency that mark the progress of a maturing society"; and that consequently, this facet of capital punishment renders the penalty at odds with the Eighth Amendment's prohibition …

Rational Recreation And The Law: The Transformation Of Popular Urban Leisure In Victorian England , Rachel Vorspan

Faculty Scholarship

In this article, Rachel Vorspan investigates the complex role played by the courts in the social and cultural transformation of Victorian England. Through focusing on judicial rulings in the recreational as well as political and industrial contexts she explains how the English judiciary played an important function in "rationalizing" the major institutions and practices of urban leisure