Law Commons^™

To Confront Or Not To Confront: Measuring Claiming Rates In Discrimination Grievances, Neil Vidmar, Herbert M. Kritzer, W. A. Bogart

Faculty Scholarship

This note reexamines the generally accepted belief that persons with discrimination-related grievances are much less likely to complain about their problem than are persons with grievances arising from consumer purchases, torts, or other common kinds of personal problems. We find that previously reported analyses greatly overstate the gap between complaining in discrimination problems and other kinds of problems. Drawing on data from three surveys, each conducted in a different country (the United States, Canada, and Australia), we find that for some types of discrimination problems the level of complaining in fact equals or exceeds complaining in other arenas.

Recent Developments: Regulation Of Racist Speech: In Re Welfare Of R.A.V., Ernest A. Young

Faculty Scholarship

No abstract provided.

Electronic Surveillance, Kimberly D. Krawiec

Faculty Scholarship

No abstract provided.

Congress Stories, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.

Compounding Or Creating Confusion About Supplemental Jurisdiction? A Reply To Professor Freer, Thomas D. Rowe Jr., Stephen B. Burbank, Thomas M. Mengler

Faculty Scholarship

Response to Richard D. Freer, 40 Emory Law Journal 445, 1991

Congress Accepts Supreme Court’S Invitation To Codify Supplemental Jurisdiction, Thomas D. Rowe Jr., Thomas M. Mengler, Stephen B. Burbank

Faculty Scholarship

Congress' codification of supplemental jurisdiction in response to the Supreme Court decision in Finley v. United States (1989) serves as a model of successful dialogue between the judicial and legislative branches.

The American Jury At Twenty-Five Years, Neil Vidmar, Valerie P. Hans

Faculty Scholarship

reviewing Harry Kalven, Jr. and Hans Zeisel, The American Jury (1966)

A Process Of Denial: Bork And Post-Modern Conservatism, James Boyle

Faculty Scholarship

No abstract provided.

Love Makes A Family--Nothing More, Nothing Less: How The Judicial System Has Refused To Protect Nonlegal Parents In Alternative Families, Barbara Cox

Faculty Scholarship

Part I of this article discusses the legal system's recognition of parental rights and enumerates the possible constitutional, statutory, and equitable theories available for protecting the parental rights of nonlegal parents. Part II considers the cases that have rejected the attempts by members of alternative families to use these theories to obtain this protection. Part III discusses the barriers to political power that will make it extremely difficult and time-consuming to achieve legislative change in these areas, and argues that the courts should use the means available to them currently to protect these nonlegal parents and their children while the …

Mental Health Malpractice In The 1990s, Steven R. Smith

Faculty Scholarship

This article analyzes the current levels and kinds of mental health malpractice claims. It also discusses the direction of individual and institutional malpractice in the 1990s and considers potential reforms. Finally, the article argues that the current system is inadequate to deal with many mental health injuries and that patient plaintiffs should have the option of pursuing malpractice claims in a private, less threatening forum.

Privatization In Eastern Europe: Impractical, But Not Impossible, Andrzej Rapaczynski

Faculty Scholarship

The most important thing that must be understood by anyone thinking about Eastern European privatization is that the word "privatization," although correct, is somewhat misleading. It is misleading because it brings to mind the operations performed in many other countries where state-owned companies have been sold to private individuals. It is very important to understand that the significance of privatization and the practicality of privatization in Eastern Europe are quite different. The most important thing is that the main task of privatization is not to transfer ownership from one party to another-like that successfully done in England-but rather to create …

Constitutional Control Of Military Actions: A Comparative Dimension, Lori Fisler Damrosch

Faculty Scholarship

The purpose of this essay is to examine some aspects of the legal framework for military activity in the internal law of some of the world's most powerful states. The international community has a major stake in the constitutional evolution of member states as regards the authority to decide to go to war. That stake – or those interests, since they are plural (and hold some possibility for contradiction) – can be identified as follows:

(1) to strengthen trends toward constitutionalism generally, by which I mean the concept of governance based on law;
(2) to strengthen trends toward civilian control …

Morality As Interpretation, Joseph Raz

Faculty Scholarship

With the growing interest in interpretation as an activity essential in the study of the arts and of society it was inevitable that the question of the relation between morality and interpretation would attract considerable interest. Given that moral views and arguments are expressed in language, are essentially language bound, there is no doubt that the understanding of moral views and argument involves, at least at times, interpretation (of arguments and propositions, etc.). The same can be said of physics. The question is whether morality is interpretative in a way in which physics is not. Some writers have claimed that …

Feminist Jurisprudence - The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda Finley, Carin Clauss, Joan Bertin

Faculty Scholarship

No abstract provided.

Is It Time For A Federal Corporation Law, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Faculty Scholarship

Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives and from the constitutional perspectives of separation of powers. His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our sprawling …

Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr.

Faculty Scholarship

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third, …

The Health Care Proxy And The Living Will, George J. Annas

Faculty Scholarship

A legally enforceable declaration can be executed only 14 days or more after a person is diagnosed as having a terminal illness, defined as one that will cause the patient's death "imminently," whether or not life-sustaining procedures are continued. [...]even though this statute was inspired by her story, it would not have helped Quinlan, because she was not terminally ill.

Home Rule, Majority Rule, And Dillon's Rule, Richard Briffault

Faculty Scholarship

Clayton Gillette's In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law? is an ambitious attempt to breathe new life into an old local government law chestnut through the analytical tools of modern political economy. Gillette asserts that because the Rule permits state judges to invalidate local legislation that results from "one-sided lobbying," Dillon's Rule increases the allocational efficiency of local decision making and reduces the deadweight losses attendant on special interest pursuit of rent-seeking ordinances. According to Gillette, Dillon's Rule checks the danger of special interest abuse of local politics by constraining local …

Shareholder Initiative: A Social Choice And Game Theoretic Approach To Corporate Law, Jeffrey N. Gordon

Faculty Scholarship

When it comes to specific business matters, it seems that an objecting shareholder can do no more than offer a "precatory" resolution that provides shareholder advice on the issue. Adoption of such a resolution obviously sends a strong signal to management, as do informal contacts by important shareholders, that a management seeking to avoid a control contest may be well-advised to heed. Nevertheless, management can ignore such expressions of shareholder. preference and, indeed, can pursue policies and extraordinary transactions that it knows shareholders would reject. Thus for the large public corporation the pattern of delegation gives management virtually unbounded decisionmaking …

Ronald V. Dellums V. George Bush (D.D.C. 1990): Memorandum Amicus Curiae Of Law Professors, Bruce A. Ackerman, Abram Chayes, Lori Fisler Damrosch, John Hart Ely, Erwin N. Griswold, Gerald Gunther, Louis Henkin, Harold Hongju Koh, Philip B. Kurland, Laurence H. Tribe, William W. Van Alstyne

Faculty Scholarship

This joint memorandum is submitted to the court hearing Dellums v. Bush. This amicus brief advocates that the President may not order American armed forces to make war without consultation with and approval by Congress. The brief also argues that the case is justiciable.

How The Proxy Rules Discourage Constructive Engagement: Regulatory Barriers To Electing A Minority Of Directors, Ronald J. Gilson, Lilli A. Gordon, John Pound

Faculty Scholarship

During the 1980s, both sides of the hostile takeover controversy viewed proxy contests in terms that bordered on the mythical. Those made uneasy by the takeover phenomenon, especially management, held out proxy contests as an alternative, almost utopian mechanism through which a civilized debate about corporate strategy and structure could be held. As the Delaware Supreme Court put it, "[if the stockholders are displeased with the actions of their elected representatives [in blocking a hostile takeover], the powers of corporate democracy are at their disposal to turn the board out.” In contrast, those who believed that takeovers were necessary to …

Race, Gender, And Sexual Harassment, Kimberlé W. Crenshaw

Faculty Scholarship

I would like to thank Anita Hill and express my deep respect to her for having the courage to shatter the silence on sexual harassment. I am certain that I speak for millions of women in saying that I have been inspired and renewed by her strength and integrity.

I have looked forward to addressing you tonight on a critical issue at this very important juncture in our political history. Sexual harassment has captured our attention over the last several weeks and has of course galvanized women in a way that scarcely could have been imagined only a few short …

Unlimited Liability And Law Firm Organization: Tax Factors And The Direction Of Causation, Ronald J. Gilson

Faculty Scholarship

In a recent issue of this Journal, Carr and Mathewson (1988) test a model of the impact of limited and unlimited liability regimes on the nature of firms by comparing the performance of law firms operated as partnerships and sole proprietorships (and therefore subject to unlimited liability) with that of law firms operated as corporations (and therefore subject to limited liability).

Recovery For Pure Economic Loss In Tort: Another Look At Robins Dry Dock V. Flint, Victor P. Goldberg

Faculty Scholarship

In Robins Dry Dock and Repair Co. v. Flint, the Supreme Court laid down the general proposition that claims for pure economic loss are not recoverable in tort. Although courts have sometimes ignored or distinguished Robins, its holding is still a central feature of tort law. In a recent en bane decision regarding claims by those injured by a chemical spill in the Mississippi River, the Fifth Circuit engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law.

The Robins rule is overbroad, lumping together a number of …

Gender, Legal Education And Legal Careers, Antoinette M. Sedillo Lopez, Lee Teitelbaum, Jeffrey Jenkins

Faculty Scholarship

Much of the literature on the careers of women generally-as well as the smaller literature on the experiences of women in legal education and legal practice-supposes that women will follow different paths and have different experiences than men, and that this is and will be true because they are women. Some commentators on the relation between gender and the experience of legal professionals believe that women have distinctive modes of cognition or value orientations that shape their experience in the workplace, while others believe that social and cultural assumptions (held not only by employers but often by women themselves) are …

The Death Penalty And Gender Discrimination, Elizabeth Rapaport

Faculty Scholarship

Despite the paucity of research on the death penalty and gender discrimination, it is widely supposed that women murderers are chivalrously spared the death sentence. This supposition is fueled by the relatively small number of women who are condemned. This article argues that women are represented on contemporary U.S. death rows in numbers commensurate with the infrequency of female commission of those crimes which our society labels sufficiently reprehensible to merit capital punishment. Additionally, preliminary investigation suggests that death-sentenced women are more likely than death-sentenced men to have killed intimates, although the explanation for this disparity is not yet at …

Simple Justice: Humanitarian Law As A Defense To Deportation, Jennifer Moore

Faculty Scholarship

Each year, thousands of persons fleeing situations of military conflict in their home countries are denied refuge in the United States. These denials result in part from an asylum adjudication process that requires applicants to show that they are persecuted on an individualized basis, rather than that they fear generalized conditions of violence. Jennifer Moore explores the development of the humanitarian law defense to deportation, which seeks to compel immigration courts to recognize and apply international humanitarian law. Part I describes the evolution of the humanitarian law argument in immigration courts. Part II considers the relationship between humanitarian law and …

Pyrrhic Victories And Glorious Defeats: Why Defendants Are Winning And Plaintiffs Are Losing The Struggle Over Actual Malice And Fictionalized Quotation, Richard A. Gonzales

Faculty Scholarship

This article reviews Masson v. New Yorker Magazine, a case of fabricated quotations. The article looks first at the legal background and Supreme Court's development of the actual malice standard. An analysis of the problem through journalistic ethics and investigation of the difficulties confronting libel plaintiffs will follow. Finally, the comment explores the misquotation problem from both a legal and a journalistic perspective.

Medicaid Reform Through Setting Health Care Priorities, Robert L. Schwartz

Faculty Scholarship

The face of American health care has changed since the creation of the two largest government funded health programs, Medicare and Medicaid. Whatever positive cultural benefits those programs have provided, they have carried with them one overwhelming defect: a language with obscure and untreatable words and phrases which has added to the mystery and impenetrability of the underlying substantive law. This article discusses Oregon’s proposal for prioritization, reviews legal arguments, a policy argument against the proposal, and finally concludes that any priority list that generalizes from condition-treatment pairs necessarily overgeneralizes, that the range of cost-utility ratios for any condition-treatment pair …