Law Commons^™

Laugh Track, Jay D. Wexler

Faculty Scholarship

The Supreme Court may have its own police force, its own museum curator, and even its own basketball court, but unlike the courts of yore it has no Jester. As a result, the responsibility of delivering humor within the hallowed halls of One First Street falls squarely on the backs of the nine Justices themselves. But which Justice provides the best comic entertainment for the court watchers, lawyers, and staff that make up the Court’s audience on any given argument day? Surely many believe that Justice Scalia, with his acerbic wit and quick tongue, has provided the most laughs from …

Private Disputes And The Public Good: Explaining Arbitration Law, William W. Park

Faculty Scholarship

At least two intersecting questions lurk in any study of international business arbitration. Each arises from the litigants' desire (at least when the contract was signed) for binding dispute resolution outside the framework of government-administered courts. Each brings analytic challenges that implicate cross-cultural conflicts.

Turning From Damage Caps To Information Disclosure: An Alternative To Tort Reform, Kathryn Zeiler

Faculty Scholarship

Medical malpractice damage caps are among the most popular instruments of tort reform at the state level. Recently the Bush administration proposed a federal damage cap on non-economic damages to quell the rise of medical malpractice insurance premiums despite the paucity of empirical evidence demonstrating that damage caps actually decrease premiums. This Case Study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis: therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organizations and …

A Criminal Procedure Regime Based On Instrumental Values: A Review Of 'About Guilt And Innocence: The Origins, Development, And Future Of Constitutional Criminal Procedure,' By Donald A. Dripps (Prager Publishers, 2003), Tracey Maclin

Faculty Scholarship

Like many legal academics, Professor Donald Dripps believes that the Supreme Court's criminal procedure doctrine is a mess. Dripps believes that the Court's doctrine "is in large measure responsible for the failure of the criminal-procedure revolution" and contends that "current doctrine does not reflect prevailing (and justified) values about criminal process." To prove his claim, Dripps has written a book that expertly identifies the flaws, inconsistencies and missteps of the Court's constitutional criminal procedure cases dating back to the adoption of the Fourteenth Amendment. "About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure" is a comprehensive …

Common Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly Krawiec, Kathryn Zeiler

Faculty Scholarship

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of …

The Practice Of Marriage, Katharine B. Silbaugh

Faculty Scholarship

Over the past 40 years, robust law has developed addressing the treatment of non-marital cohabitants. Consequently, the government's gatekeeping role operates somewhat differently than before. States are now more clearly policing the social benefits and the symbolism accompanying marriage, having agreed to provide many of its legal benefits to non-marital couples. This article investigates the state's current role in articulating and managing, as well as responding to, the social meaning of marriage in the context of three recent high profile cases: the prosecution of polygamist Tom Green, the Goodridge same sex marriage case in Massachusetts, and the challenge to Michael …

Tragedy & Remedy: Reparations For Disparities In Black Health, Kevin Outterson

Faculty Scholarship

The Tragedy of American health care is the stubborn persistence of disparities in Black health, one hundred and forty years after Emancipation, and more than four decades after the passage of Title VI. Formal legal equality has not translated into actual health equality. This Tragedy is deeper and older than mere legal forms; it has been supported by powerful social institutions, including some governments, charities, market participants, religions, ideologies, and cultures. Black health disparities interact with other vestiges of slavery such as disparities in wealth, education, employment and housing. They have permeated the American health experience. Efforts to eliminate Black …

'Bend It Like Beckham' And 'Real Women Have Curves': Constructing Identity In Multicultural Coming-Of-Age Stories, Linda C. Mcclain

Faculty Scholarship

This Article looks at the coming-of-age stories in two recent films, Bend It Like Beckham and Real Women Have Curves, as an avenue to explore the question of constructing identity. Both films, arising out of the filmmakers' experiences, aim to offer representations of particular individuals in minority groups that challenge dominant representations. They also offer aspirational visions of how such individuals might find a way to construct a hybrid identity that allows them to negotiate their place within the various groups that claim them and within the broader society. How, the article asks, do the heroines in these films find …

Is Obtaining An Arrestee's Dna A Valid Special Needs Search Under The Fourth Amendment? What Should (And Will) The Supreme Court Do?, Tracey Maclin

Faculty Scholarship

An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex …

Harry Potter And The Law, Timothy S. Hall, Jeffrey E. Thomas, Danaya C. Wright, James Charles Smith, Aaron Schwabach, Joel Fishman, Daniel Austin Green, Andrew P. Morriss, Benjamin H. Barton

Faculty Works

The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories. The contributions of James Charles Smith and Danaya Wright address the depiction of families in the narratives and the limited role and development of family law. Benjamin H. Barton's contribution considers the failings …

High-Powered Controversy: Gun Control, Terrorism And The Fight Over .50 Caliber Rifles, Allen K. Rostron

Faculty Works

Near the end of the First World War, the German army introduced powerful new anti-tank rifles, and the U.S. military realized that it needed a similar weapon. Legendary American firearm designer John Browning answered the call by developing a heavy-duty machine gun and a new type of .50 caliber ammunition for it. Although rapid improvement in armor plating soon made it obsolete as an anti-tank weapon, Browning's machine gun proved to be enormously successful when deployed against personnel and less heavily armored vehicles. Military forces throughout the world continue to use it today. The ammunition for this gun became known …

Embracing Segregation: The Jurisprudence Of Choice And Diversity In Race And Sex Separatism In Schools, Nancy Levit

Faculty Works

Fifty years after Brown v. Board of Education, segregation based on race and sex is sweeping the nation's educational systems. Courts are rapidly dismantling desegregation orders, and when those desegregation orders end, school districts racially resegregate. At precisely the same time this end to racial desegregation is occurring, the government is beginning to sponsor sex segregation in schools as well. The No Child Left Behind Act provides over $400 million in federal funds for experiments in education, such as single-sex schools and classes. Embracing Segregation draws connections between the end of racial desegregation and the beginning of government-sponsored sex segregation …

The Scopes Trope, Jay D. Wexler

Faculty Scholarship

In his book, Where Darwin Meets the Bible: Creationists and Evolutionists in America, journalist Larry Witham introduces the reader to the various characters involved in the ongoing controversy over evolution and creationism. His account is subtle and nuanced, and he demonstrates that the controversy is more complicated than many believe. Far from caricatures of godless scientists seeking to discard religion in thedustbin of history and reactionary religious fundamentalists decrying Darwinism as the downfall of mankind, Witham gives us the real stories of real people who dwell in shades far more gray than usually recognized. This book review builds upon Witham's …

The Theory Of Penalties And The Economics Of Criminal Law, Keith N. Hylton

Faculty Scholarship

This paper presents a model of penalties that reconciles the conflicting accounts optimal punishment by Becker, who argued penalties should internalize social costs, and Posner, who suggested penalties should completely deter offenses. The model delivers specific recommendations as to when penalties should be set to internalize social costs and when they should be set to completely deter offensive conduct. I use the model to generate a positive account of the function and scope of criminal law doctrines, such as intent, necessity, and rules governing the distinction between torts and crimes. The model is also consistent with the history of criminal …

P2p And The Future Of Private Copying, Peter K. Yu

Faculty Scholarship

Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate.

Using a holistic approach, this Article brings together existing scholarship while offering some thoughts on the future of private copying. The Article does not seek …

Introduction By George A. Bermann, George A. Bermann

Faculty Scholarship

The accountability of states and state actors on the international scene is on a forward march. The fora in which this development is playing itself out are multiple: national courts of the state actor, national courts of other states, international tribunals of a more or less public law variety, private international law tribunals, and all manner of hybrids.

Incomplete Contracts And The Theory Of Contract Design, Robert E. Scott, George G. Triantis

Faculty Scholarship

We are delighted to accept this invitation to write a short essay on the economic theory of incomplete contracts and to illuminate its current and potential impact on the legal analysis of contracts and contract law. Economic contract theory has made significant inroads in legal scholarship over the past fifteen years, and this is a good time to take stock of its strengths and weaknesses. Several recent publications in the Yale Law Journal have offered evaluations of the contributions of contract theory.' In this essay, we offer our opinion as to its future path in legal scholarship. In particular, we …

A Terrible Purity: International Law, Morality, Religion, Exclusion, Tawia Baidoe Ansah

Faculty Publications

This article's point of departure is the US's war against Iraq, which was begun in 2003 under various rationales - political, legal, and moral. As the legal and political justifications fell away or were cast into question, the moral became the primary reason for going to war. The justifications were, however, construed in religious language. For many, this "return" of religion within US foreign policy seemed particular to the Bush Administration. Others have argued that the turn to religion in time of war is nothing new. Nevertheless, the war and its justifications made me wonder about the nature of public …

The Misplaced Flight To Substance, Thomas W. Merrill

Faculty Scholarship

Courts and commentators have struggled for years to come up with a substantive test for what kinds of condemnations are for a "public use." Does public use mean government ownership and control of property after it is taken? This would preclude delegation of eminent domain to common carriers and utilities. Does public use mean public access to the property after it is taken? This would preclude using eminent domain to acquire facilities off-limits to the public, like prisons.

Faced with these problems of under-inclusion, courts have gravitated to the idea that public use means public purpose. The U.S. Supreme Court …

Marriage Equality In New Jersey, Suzanne B. Goldberg

Faculty Scholarship

The question at the heart of the current challenge to New Jersey's marriage law is not a complicated one: Can the state maintain different rules for recognizing the relationships of gay and non-gay couples?

Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt

Faculty Scholarship

Actuarial methods – i.e., the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome – now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate …

Legal Socialization Of Children And Adolescents, Jeffrey Fagan, Tom Tyler

Faculty Scholarship

Research on children and the law has recently renewed its focus on the development of children's ties to law and legal actors. We identify the developmental process through which these relations develop as legal socialization, a process that unfolds during childhood and adolescence as part of a vector of developmental capital that promotes compliance with the law and cooperation with legal actors. In this paper, we show that ties to the law and perceptions of law and legal actors among children and adolescents change over time and age. We show that neighborhood contexts and experiences with legal actors shape the …

Wrongs Of Ignorance And Ambiguity: Lawyer Responsibility For Collective Misconduct, William H. Simon

Faculty Scholarship

Deliberate ignorance and calculated ambiguity are key recurring themes in modern scandals from Watergate to Enron. Actors, especially lawyers, seek to limit responsibility by avoiding knowledge and clear articulation. This essay considers this phenomenon from the point of view of both business organization and legal doctrine. Evasive ignorance and ambiguity seem endemic to a particular organizational model and to a traditional model of legal responsibility. Developments in both law and business, however, suggest that these models are being superceded. Many of the most dynamic businesses now emphasize practices of "transparency" designed to inhibit evasive ignorance and calculated ambiguity. A major …

Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits

Faculty Scholarship

This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine …

Globalizing Approaches To Legal Education And Training: Canada To Japan, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

Another Tocqueville, Donald J. Herzog

Articles

Time for a true confession: I'm skeptical of predictions in social and political life. Talk of causal generalizations and Hempel's covering laws strikes me as science fiction and fantasy in drag; talk of the unfolding of the immanent logic of modernity makes me dyspeptic. I usually think that structural considerations are context, not cause, and that weird combinations of stray contingencies explain what happens. Worse, now I'm called on to predict how political theorists will be discussing democracy ten years hence. Images of herding cats and Brownian motion come to mind. Nonetheless, duty calls. I dust off my crystal ball …

How "Mead" Has Muddled Judicial Review Of Agency Action, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

In "United States v. Mead Corp.", the Supreme Court held that an agency is entitled to Chevron deference for interpretations of ambiguous statutory provisions only if Congress delegates, and the agency exercises, authority to issue such interpretations with "the force of law." The Court did not define "force of law," and thus did not determine what type of agency procedures fit within Mead. Four years have passed since the Court decided Mead, and despite numerous Court of Appeals decisions, we still do not know when an agency is entitled to Chevron deference for interpretations issued through procedures less formal than …

Mental Disorder As An Exemption From The Death Penalty: The Aba-Irr Task Force Recommendations, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The Task Force on Mental Disability and the Death Penalty (Task Force) established by the Individual Rights and Responsibilities Section of the American Bar Association (ABA-IRR) has proposed that the ABA adopt three recommendations concerning the role of mental disability in capital cases. The first two recommendations call for a prohibition on execution of offenders whose mental disorder rendered them less culpable at the time of the offense, and the third would prohibit execution of those whose mental disability currently renders them incompetent to pursue appeals or to be executed. This Article discusses the first two, culpability-related, recommendations. With respect …

Yale Kamisar: A Principled Man For All Seasons, Douglas A. Kahn

Articles

Yale Kamisar began his distinguished career as a law professor in 1957 at the University of Minnesota Law School. For three years prior to joining the Minnesota faculty, Yale had been an associate with the Washington, D.C. law firm of Covington & Burling specializing in antitrust law. Understandably, Yale and Minnesota assumed that he would devote the major part of his research and teaching to antitrust. At that time, the study of criminal law was near the bottom of the hierarchy of law school topics, and so young faculty often were assigned the task of teaching criminal law as the …

After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine

Articles

The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.