Law Commons^™

Managerial Judging And Substantive Law, Tobias Barrington Wolff

All Faculty Scholarship

The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.

In this Article, I examine the interface between substantive law and managerial …

Why I Do Law Reform, Lawrence W. Waggoner

Articles

In this Article, Professor Waggoner, newly retired, provides a retrospective on his career in law reform. He was inspired to write the Article by a number of articles by law professors explaining why they write. He contrasts law-reform work with law-review writing, pointing out that the work product of a law-reform reporter is directed to duly constituted law-making authorities. He notes that before getting into the law-reform business, he had authored or co-authored law review articles that advocated reform, but he also notes that those articles did not move the law a whit. The articles did, however, lead to his …

Obamacare's (3) Day(S) In Court, Abigail Moncrieff

Faculty Scholarship

Before the oral arguments in late March, the vast majority of legal scholars felt confident that the Supreme Court of the United States would uphold the individual mandate against the constitutional challenge that twenty-six states have levied against it. Since the oral argument, that confidence has been severely shaken. This article asks why legal scholars were so confident before the argument and what has made us so concerned since the argument. The article posits that certain fundamental characteristics of health insurance - particularly its unusual role in steering healthcare consumption decisions, which distinguishes health insurance from standard kinds of indemnity …

Aggravating Punitive Damages, David G. Owen

Faculty Publications

No abstract provided.

The Transformation Of The Laws Of War Into Humanitarian Law, Mark Antaki

Studio for Law and Culture

This study undertakes a genealogy of crimes against humanity. It inquires into key historical transformations that preceded the official birth of crimes against humanity in positive international law. The study brings to light changes in understandings of law, politics, and human being-together that accompany the articulation of crimes against humanity.

To speak of crimes against humanity is to speak the death of God. With the French Revolution, man displaces God as ground and measure of law and politics, leading to the articulation of crimes against humanity. The man who displaces God is “natural man,” a man who is naturally …

Relational Duties, Regulatory Duties, And The Widening Gap Between Individual Health Law And Collective Health Policy, William M. Sage

Faculty Scholarship

In response to a prominent editorial by Dr. Jeffrey M. Drazen, Professor Sage explains how a relational approach has impeded health law's ability to effectively govern the American health care system, arguing that health law has traditionally focused on the physician-patient encounter rather than on achieving collective objectives (which he calls regulatory duties). Professor Sage traces health law's relational emphasis to private and public law, professional ethics and bioethics, budgetary and general politics, and health care consumerism. He concludes that four areas of health policy-conflicts of interest in biomedical research, managed care and pay-for-performance, health care transparency and education, and …

Public Law As The Law Of The Res Publica, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Happy Families - Translating Positive Psychology Into Family Law, Clare Huntington

Faculty Scholarship

Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …

The Continued Vitality Of Prophylactic Relief, Tracy A. Thomas

Akron Law Faculty Publications

The categorization of a separate type of “prophylactic” injunction and its continued prevalence in the courts provides a framework by which to evaluate the legitimacy of broad injunctions. Such broad injunctive relief has been conventionally theorized as simple judicial activism, and has been attacked accordingly. The theory of prophylaxis provides an alternative narrative by which to evaluate injunctive relief in order to retain valuable and effective judicial remedies. Rather than striking down all broad injunctive relief as the dominant discourse demands, the concept of the prophylactic injunction provides language through which jurists and lawyers can navigate the real issues of …

Slides: The Future Public Law Of Private Ecosystems, J. B. Ruhl

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: J.B. Ruhl, Florida State University Law School

18 slides

Economic Emergency And The Rule Of Law, Bernadette Meyler

Cornell Law Faculty Publications

Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by …

International Rule Of Law And The Market Economy - An Outline, Samuel Bufford

Journal Articles

Law matters in economic development. The Rule of Law is an indispensable foundation for a market economy, which provides an essential environment for the creation and preservation of wealth, economic security, and well-being, and the improvement of the quality of life. The Rule of Law is part of the "software" of governmental regulation that is needed to operate the "hardware" of free markets. Its promotion can make a major contribution to economic growth, and an infrastructure that creates and promites legal rights is an essential platform for economic development. The cumulative costs of doing without the Rule of Law in …

Depriving Law Reform Of Its Potential? New Perspectives On The Public-Private Divide Law Commission Of Canada, Ed. (Vancouver: University Of British Columbia Press, 2003), Richard Devlin Frsc

Articles, Book Chapters, & Popular Press

New Perspectives on the Public-Private Divide is the second installment in a new series, Legal Dimensions, sponsored by the Canadian Association of Law Teachers, the Canadian Law and Society Association, the Canadian Council of Law Deans and the Law Commission of Canada. The ambitions of this series are large: to "examine various issues of law reform form a multidisciplinary perspective [and]... to advance our knowledge about law and society through the analysis of fundamental aspects of law."

The focus on the public-private divide is an excellent choice for the Legal Dimensions Series for no matter how one conceptualizes the relationship, …

Ambiguity, Sovereignty And Identity In Ireland: Peace And Transition, James J. Friedberg

Faculty & Staff Scholarship

No abstract provided.

Book Review. From Anarchy To Allottopia, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Reconceptualizing Criminal Law Defenses, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In 1933, one of the leading theorists of the criminal law, Jerome Michael, wrote openly of the criminal law "as an instrument of the state." Today, criminal law is largely allergic to claims of political theory; commentators obsess about theories of deterrence and retribution, and the technical details of model codes and sentencing grids, but rarely speak of institutional effects or political commitments. In this article, the author aims to change that emphasis and to examine the criminal law as a tool for governance. Her approach is explicitly constructive: it accepts the criminal law that we have, places it in …

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Faculty Scholarship

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Welfare Entitlements In The Era Of Devolution, Christine N. Cimini

Articles

In 1996, the Republican Congress and Democratic President enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), ushering in a new era of public benefits. This 1996 act’s fundamental change to the administration and substance of public benefits called into question the applicability of a substantial body of procedural due process doctrine. As a result, unanswered questions remain regarding the applicability of established due process doctrine in the welfare reform context. This Article analyzes whether public law entitlements exist in the context of PRWORA’s first order devolution from the federal to state governments as well as some states’ second …

The Diminishing Sphere Of The Cooperative Virtues In American Law And Society, Ana M. Novoa

Faculty Articles

Exploration of destructive developments in American law and society show that family law is completely askew. Although family law deals with the most intimate and basic personal relationships, it applies a legal process based on autonomous individual public and private economic rights to those intimate relational realities. It is a hallowed expression of male virtues and a paradigmatic example of the use of the law to protect vested interests and shape society, rather than a reflection of reality.

The split between the private/family/female and the public/business/male spheres of the nineteenth century created the separation of competitive attributes, virtues, and vices …

The Globalizing State: A Future-Oriented Perspective On The Public/Private Distinction, Federalism, And Democracy, Alfred C. Aman

Articles by Maurer Faculty

No abstract provided.

Divestment Of Federal Water Projects, A. Jack Garner

Dams: Water and Power in the New West (Summer Conference, June 2-4)

21 pages.

Contains references.

European Community Law From A U.S. Perspective, George A. Bermann

Faculty Scholarship

Although less than forty years have passed since the founding of the European Economic Community (now the European Community), the lifetime of the Community is well marked temporally. The term of each Commission furnishes a convenient time-line for measuring the Community's progress in legal integration. Since the 1970s, each year has been punctuated by two or more "summit" meetings of heads of state or government. These summits not only are key markings in their own right, but also furnish an occasion for additional monitoring of the Community's state of health. Throughout the 1970s and into the 1980s, the Community submitted …

Municipal Issues And The Charter Of Rights: The Impact At The Grass Roots, A. Wayne Mackay, Kathryn Heckaman

Articles, Book Chapters, & Popular Press

Municipal institutions are the forgotten partners in the Canadian confederation. This is true in both political and legal terms. In political terms the agencies of local government are often under-valued. With respect to the law, the municipal level of government has too often been ignored. Both municipal councils and their related boards and tribunals have an important impact on the lives of citizens at the grass roots level. In carrying out their duties, municipal authorities exercise a wide range of discretionary powers and it is becoming increasingly important that they recognize the legal limits on their powers. The first and …

An Independent Public Law, Carl W. Tobias

Law Faculty Publications

This Article analyzes the application of numerous Federal Rules in public law litigation to show how the resurrection of private law approaches and hostility toward public interest litigants serves to disadvantage public interest litigants. The assessment is intended to discourage such future enforcement of the Federal Rules and analogous judicial treatment in other areas of public law. The Article is also meant to foster greater appreciation of public law and the articulation of a larger complement of public law principles so as to facilitate the growth of an independent public law.

Public Law Litigation And The Federal Rules Of Civil Procedure, Carl W. Tobias

Law Faculty Publications

The public interest litigant is no longer a nascent phenomenon in American jurisprudence. Born of the need of large numbers of people who individually lack the economic wherewithal or the logistical capacity to vindicate important social values or their own specific interests through the courts, these litigants now participate actively in much federal civil litigation: public law litigation. Despite the pervasive presence of public interest litigants, the federal judiciary has accorded them a mixed reception, particularly when applying the Federal Rules of Civil Procedure. Many federal courts have applied numerous Rules in ways that disadvantage public interest litigants, especially in …

Rethinking The Class Action: A Policy Primer On Reform, John C. Coffee Jr.

Faculty Scholarship

Today, virtually everyone has a proposal for "reforming" class action litigation but both consensus and coherence are lacking. Some proposals are bluntly restrictive. For example, the Reagan Administration would reduce attorney's fees, place a ceiling on product liability, and partially repeal treble damage statutes. In the same vein, the United States Supreme Court has shown itself parsimonious on the question of fee awards, by authorizing fee waivers, approving offers of settlement that seemingly permit fee shifting against the plaintiff's attorney, and curtailing the traditional bases on which a fee award may be enhanced. Other proposals have offered essentially neutral procedural …

Shareholders Versus Managers: The Strain In The Corporate Web, John C. Coffee Jr.

Faculty Scholarship

"We have entered the era of the two-tier, front-end loaded, bootstrap, bust-up, junk-bond takeover." —Martin Lipton

Until recently, takeovers typically involved larger firms digesting smaller firms, a process that most theorists have assumed was driven by the pursuit of synergistic gains. Lately, however, this dynamic has dramatically reversed itself. To a considerable extent, the large conglomerate is now the target, and such prototypical conglomerate firms as General Foods, Richardson-Vicks, Beatrice, Revlon, SCM, CBS,USX, and Anderson, Clayton and Co. have either been acquired or forced to restructure themselves within the last three years alone. The new bidder in turn tends to …

Legal Education And Public Policy, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Private Universities And Public Law, Robert M. O'Neil

Articles by Maurer Faculty

No abstract provided.

The Politics Of Planning For Urban Redevelopment: Strategies In The Manipulation Of Public Law, Sheldon J. Plager, Joel F. Handler

Articles by Maurer Faculty

In this article Professors Plager and Handler examine the influence of legal process upon decision making in municipal redevelopment. Their thesis is that public acceptance of a redevelopment venture depends primarily on the command of political and planning skills and occurs despite rather than because of legal procedures designed to accommodate principles of democracy. Partly through the method of a case study of recent data collected from one municipality, partly by comparative analysis with other studies, they conclude that the reality of decision making in the region they explore is the predominance of informal power over formal, democratic, legal decision-making …