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Review Of Cardozo: A Study In Reputation, By R. Posner, Richard D. Friedman
Review Of Cardozo: A Study In Reputation, By R. Posner, Richard D. Friedman
Reviews
Judge Richard Posner has written a genial book about one of our greatest judicial icons, Benjamin N. Cardozo.1 He seeks not only to assess the merits of Cardozo's writings, both on and off the bench, but also to measure, and determine the causes of, Cardozo's reputation. The book is an outgrowth of a lecture series,2 and it reveals its origins in at least two ways. First, the book attempts to reach a mixed audience, composed of both lawyers and laypeople, and in this aspect it is very successful. Nonlawyers, I believe, will have little difficulty following Judge Posner's essential arguments, …
Putting The Dormancy Doctrine Out Of Its Misery, Richard D. Friedman
Putting The Dormancy Doctrine Out Of Its Misery, Richard D. Friedman
Articles
Justice Antonin Scalia has put on the academic table the question of whether the doctrine of the dormant commerce clause should be abandoned. That is a significant contribution, for this is an issue that should be debated thoroughly. But Justice Scalia's campaign against the doctrine has been notably ambivalent. On the one hand, he argues that the doctrine lacks justification in constitutional text, history, and theory.1 On the other hand, assertedly feeling the pressure of stare decisis,2 he has gone along with, and even led, applications of the doctrine, although within narrow limits.3 In this essay, I argue that Justice …
Ex Proprio Vigore, James J. White
Ex Proprio Vigore, James J. White
Articles
The National Conference of the Commissioners on Uniform State Laws (NCCUSL) is a legislature in every way but one. It drafts uniform acts, debates them, passes them, and promulgates them, but that passage and promulgation do not make these uniform acts law over any citizen of any state. These acts become the law of the various states only ex proprio vigore - only if their own vitality influences the legislators of the various states to pass them.
Absolute Priority And New Value, James J. White
Absolute Priority And New Value, James J. White
Articles
This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …
To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth
To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth
Articles
Professor Elliott raises two questions about the American Psychological Association's practice of submitting amicus briefs to the courts. First, are our data sufficiently valid, consistent, and generalizable to be applicable to the real world issues? Second, are amicus briefs adequate to communicate scientific findings? The first of these is not a general question, but must be addressed anew each time the Association considers a new issue. An evaluation of the quality and sufficiency of scientific knowledge about racial discrimination, for example, tells us nothing at all about the quality and sufficiency of scientific knowledge about sexual abuse. "Are the data …
When Is There A Constitutional 'Right To Die'? When Is There No Constitutional 'Right To Live'?, Yale Kamisar
When Is There A Constitutional 'Right To Die'? When Is There No Constitutional 'Right To Live'?, Yale Kamisar
Articles
When I am invited to participate in conferences on the "right to die," I suspect that the organizers of such gatherings expect me to fill what might be called the " 'slippery slope' slot" on the program or, more generally, to articulate the "conservative" position on this controversial matter. These expectations are hardly surprising. The "right to die" is a euphemism for what almost everybody used to call a form of euthanasia-" passive" or "negative" or "indirect" euthanasia-and some thirty years ago, in the course of raising various objections to proposed euthanasia legislation, I advanced the "thin edge of the …