Law Commons^™

The Rulemaking Continuum, Peter L. Strauss

Faculty Scholarship

The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the judicial …

Institutional Reform In Eastern Europe: Evolution Or Design?, Roman Frydman, Andrzej Rapaczynski

Faculty Scholarship

Most recent studies of privatization in Eastern Europe focus on its impact on individual enterprises. In our previous work, we examined this issue from the viewpoint of the future corporate governance structure in Eastern Europe. The aggregate effects of privatization have been largely neglected, perhaps on the assumption that they have no particular bearing on how privatization is to be effected at the enterprise level. It is very important, however, to link the discussion of the various approaches to large-scale privatization with a consideration of other obstacles in the transition to a market economy. These obstacles, which include the weakness …

The Individualized-Consideration Principle And The Death Penalty As Cruel And Unusual Punishment, Ronald J. Mann

Faculty Scholarship

The Eighth Amendment to the United States Constitution prohibits infliction of "cruel and unusual punishments." The Supreme Court established the basic principles applying this amendment to the death penalty during a six-year period in the 1970's. First, in 1972, in Furman v. Georgia, the Court invalidated all then-existing death penalty statutes. Second, in 1976, in Gregg v. Georgia and its companions, the Court upheld some of the statutes promulgated in response to Furman but invalidated others. Finally, in 1978, in Lockett v. Ohio, the Court invalidated an Ohio statute because it failed to give the sentencer a sufficient …

The Role Of Institutional Factors In Protecting Individual Liberties, Thomas W. Merrill

Faculty Scholarship

Questions about the efficacy of the Bill of Rights cry out for serious comparative legal scholarship. Robert Ellickson and Frank Easterbrook suggest that one might approach these questions by looking at different state constitutions. One might also look more seriously at the different constitutional regimes around the world, and try to draw some judgments about what impact, if any, different types of constitutional arrangements have on individual rights. We have heard expressions of skepticism about this approach, but there has been very little serious comparative scholarship by constitutional law scholars in this country. The scholarly tradition in America has been …

Revisiting Overton Park: Political And Judicial Controls Over Administrative Actions Affecting The Community, Peter L. Strauss

Faculty Scholarship

Overton Park is a 342-acre municipal park lying close to downtown Memphis, Tennessee, in one of that city's better residential areas. Citizens to Preserve Overton Park, Inc. v. Volpe is a Supreme Court decision frequently cited for its general propositions about judicial review of informal administrative action that, to the citizens of Memphis, was one way-station in a more than two-decade struggle concerning whether and where an inner-city expressway, part of Interstate 40, would be built. Overall, the story of that struggle reveals a complex brew of national and local politics about the marriage of highway convenience to urban amenity; …

Zero-Sum Madison, Thomas W. Merrill

Faculty Scholarship

Has the fabric of American constitutional law been permanently "distorted" by the Framers' preoccupation with protecting private property against redistribution? Jennifer Nedelsky thinks so. In this provocative study of how the idea of property shaped the political thought of the Framers and the institutions they designed, she argues that James Madison's constitutional philosophy was driven by fear that a future propertyless majority would seek to expropriate the holdings of a minority. To combat this danger, Madison sought to create a structure of government that would ensure the dominance of the propertied elite. Madison's obsessive fear of redistribution spread to the …

Getting It Right, Robert E. Scott

Faculty Scholarship

Writing a tribute for any beloved colleague who is retiring is a difficult experience. Writing about Tom Bergin, who is retiring after twenty-nine years at the Law School, is an even greater challenge. The challenge stems from Tom's legacy to his students and to his colleagues at the Law School; both the challenge and the legacy require some explanation.

A Reply: Imperfect Bargains, Imperfect Trials, And Innocent Defendants, Robert E. Scott

Faculty Scholarship

To understand what is and is not wrong with plea bargaining, one must understand the relationship of bargains to trials. Unsurprisingly, we disagree with much of what Judge Frank Easterbrook and Professor Stephen Schulhofer say about that relationship. Most of those disagreements need not be rehearsed here; readers attentive enough to wade through their essays and ours will pick up the key points readily enough. But there is one point where the dispute is at once sharp and hidden. It has to do with the fact that both trials and bargains are flawed.

That fact might seem obvious, but the …

Plea-Bargaining As A Social Contract, Robert E. Scott, William J. Stuntz

Faculty Scholarship

Most criminal prosecutions are settled without a trial. The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority …

Judgment And Reasoning In Adolescent Decisionmaking, Elizabeth S. Scott

Faculty Scholarship

Few people believe that five year olds and fifteen year olds think, act or make decisions in the same way. The question is whether and how the law should respond to developmental differences. Traditionally, childhood and adulthood have been two dichotomous legal categories, demarcated by the age of majority. This conception has been contested in recent years, as has the premise that all minors are incompetent to make decisions and function as legal actors. Fueled by the controversy over adolescent access to abortion, an advocacy movement has emerged that challenges the authority of parents and the state over the lives …

Pluralism, Paternal Preference, And Child Custody, Elizabeth S. Scott

Faculty Scholarship

Modern child custody law faces an important challenge in responding to pluralistic and evolving gender and parenting roles. Professor Scott finds rules favoring maternal custody, joint custody, and the best interests of the child wanting; she argues that the optimal response to the current pluralism in family structure is a rule that seeks to replicate past parental roles. This "approximation" standard promotes continuity and stability for children. It encourages cooperative rather than conflictual resolution of custody, thereby ameliorating the destructive effects of bargaining at divorce. It also recognizes and reinforces role change in individual families, encouraging both parents to invest …

The Legal Framework For Private Sector Development In A Transitional Economy: The Case Of Poland, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller, Peter G. Ianachkov, Daniel T. Ostas

Faculty Scholarship

The economies of Central and Eastern Europe are in the midst of an historic transition from central planning and state ownership to market driven private sector development. This transition requires comprehensive changes in the "rules of the game" – i.e. the legal framework for economic activity. Markets presuppose a set of property rights and a system of laws or customs that enable the exchange of those rights. The legal framework in a market economy has at a minimum three basic functions:

1. to define the universe of property rights in the system,
2. to set the rules for the entry and exit …

The Role Of Local Control In School Finance Reform, Richard Briffault

Faculty Scholarship

Local control is a puzzle, or rather, a series of related puzzles that has both structured and hindered the uncertain development of school finance reform. The first puzzle is really a paradox: courts and commentators generally assume that local control of education exists, that it is a basic organizational principle of American public elementary and secondary education, and a norm that must be taken into account when the existing school finance system is challenged. Yet for the law of local government generally, local control is the exception, not the rule. The ground rule of state-local relations is state control and …

The Third Man, Philip C. Bobbitt

Faculty Scholarship

Sandy is a divided man. On the one hand he is captivated by the notion of the theoretical and the explanatory, an idea that has captivated all of us since the 17th century. For Descartes, for Newton, for Freud, for Marx, for Levinson: theory is the foundation for understanding, and understanding for practice. How do they calculate the attraction among the planets? They apply the inverse square law according to the theories of Newton. How does Freud cure his patients: he explains to them why they've been behaving so peculiarly; he does this by expositing his theory. How does Marx …

The Law Of Guarantees In Singapore And Malaysia, Kee Yang Low

Research Collection Yong Pung How School Of Law

No abstract provided.

The Last Emperor?, Allan C. Hutchinson

Articles & Book Chapters

No abstract provided.

The Legal Basis Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

This paper considers a range of differing approaches to the question of Aboriginal land rights in the light of the judgment of the B.C. Supreme Court in the Delgamuukw case.

The Myth Of Retributive Justice, Brian Slattery

Articles & Book Chapters

In fairy tales, villains usually come to a bad end, snared in a trap of their own making, or visited with a disaster nicely suited to their particular villainy. Read a story of this kind to children and you will be struck by the profound satisfaction with which this predictable of events is greeted. Yet, if children cheer when the villain is done in, they are just as satisfied when the hero manages to get the villain by the throat but takes pity and spares him. These tales of retribution and mercy, even reduced to their barest bones, seem to …

The Economics And Politics Of Emergency Health Care For The Poor: The Patient Dumping Dilemma, Maria O'Brien

Faculty Scholarship

As the numbers of uninsured mount⁴ because of job dislocations, exhaustion of benefits, and unaffordably high premiums, the incidence of "dumping" by private hospitals is, predictably, on the rise. Dumping occurs when a hospital, in violation of federal or state law, transfers an emergency patient to another (usually public) hospital or simply refuses any treatment based on the patient's inability to pay.5 In addition to the completely uninsured, favorite dumping targets include Medicare and Medicaid patients, AIDS patients, and cancer patients whose therapy may cost more than the maximum reimbursement under private insurance.

Dumping is merely a part of …

Socially Responsible Investing In An Inefficient Market: Doing Good Versus Doing Well, Maria O'Brien

Faculty Scholarship

The debate about the desirability and efficacy of socially responsible investing (SRI) is about as old as the practice of investing itself. Indeed, in spite of a persistent inability on the part of all participants in the debate to develop a simple, coherent definition of what is meant by socially responsible investing, the debate continues. Many funds that purport to engage in SRI have surprisingly little in common. However, if a single political issue could be said to have attracted the attention of virtually every socially responsible fund currently in existence, it would have to be South Africa's abhorrent practice …

An Interpretivist Agenda, Gary S. Lawson

Faculty Scholarship

As I write these words, bevies of law clerks assigned to cases involving the Bill of Rights are dutifully editing their bench memos for publication in the national reporter system. Once printed, these bench memos will be solemnly treated by lawyers, scholars, other law clerks, and the occasional judge who runs across them as legally significant, or even binding, interpretations of the Constitution. Two features of this burgeoning mass of otherwise unpublishable law review comments bear mention. First, most of them are tedious, tendentious, pretentious, and badly reasoned when reasoned at all, just as one would expect from authors who …

Intra-Professional Warfare Between Prosecutors And Defense Attorneys, Nancy J. Moore

Faculty Scholarship

Until recently, I was only vaguely aware of the ongoing "war" be- tween the United States Department of Justice and the American Bar Association over the ethical conduct of prosecutors in their relation- ships with criminal defense attorneys.' Indeed, while I had always covered some aspects of prosecutorial misconduct in my professional responsibility course, I had never included either of the two ethics rules debated in this symposium-Model Rules 4.2 [hereinafter "the anti- contact rule"]2 and 3.8(f) [hereinafter "the subpoena rule"].3

A Superfund Trivia Test: A Comment On The Complexity Of Environmental Laws, William H. Rodgers, Jr.

Articles

Professor Rodgers examines the reasons for the American obsession with trivia. While unable to determine the cause of the obsession, he does provide some insight on the usefulness and need for the information in the study of environmental law.

Welfare State Crime In Canada: The Politics Of Tax Evasion In The 1980s, Lorne Sossin

Articles & Book Chapters

This paper considers the phenomenon of tax evasion in the 1980s in Canada as an outgrowth of a crisis in the welfare state. The lack of social protest over the high incidence of tax evasion among the wealthiest stratum of Canadian individuals and corporations is, on this view, linked to the transformation of politicized citizens into depoliticized clients. Tax evasion, along with legal tax avoidance both proliferated in the 1980s which reflects the convergence of a number of events including the increase in use of tax expenditures, the decreasing emphasis on enforcement in tax administration, the rise of neoconservatism and, …

The Poverty Of Privacy?, Linda C. Mcclain

Faculty Scholarship

This Article has two aims. First, it defends a continuing role for the right of privacy in arguments -for women's reproductive freedom against charges that privacy is an impoverished concept. Second, it raises cautions about certain feminist critiques of privacy that would ground this freedom in notions of reproductive responsibilities. As this Article was first presented at a conference, "Reproductive Issues in a Post-Roe' World," held in the wake of Webster v. Reproductive Health Services,2 the first question is: Are we now, given the Supreme Court's recent decision in Planned Parenthood v. Casey,' in a "post-Roe world"? Furthermore, what remains …

Sticks And Stones Can Break My Name: Nondefamatory Negligent Injury To Reputation, Katharine B. Silbaugh

Faculty Scholarship

If a reputation is injured, does it matter whether defamation is the cause? Injury to reputation differs from other items of damage a plaintiff enumerates. Tradition links it to particular tortious conduct-defamation-on the part of a defendant. This Comment examines ordinary negligent conduct as an alternative ground for recovery for injury to reputation.

Long-Term Debt, The Term Structure Of Interest And The Case For Accrual Taxation, Theodore S. Sims

Faculty Scholarship

During the past 25 years, the Internal Revenue Code has become increasingly sophisticated in its treatment of long-term debt. That transformation occurred as part of a wider set of legislative changes, changes that have made the Code generally more sensitive to the consequences of compound interest and discounted (or present) values. Much of this was dictated by necessity. By ignoring the effects of compound interest, the Code often measured income in a way that was economically unsound, and thereby allowed taxpayers to take advantage of the statutory shortcomings, often with dramatic, unanticipated results.

The Changing Landscape Of Human Experimentation: Nuremberg, Helsinki, And Beyond, George J. Annas

Faculty Scholarship

Since World War II there have been persistent efforts at both the national and international level to develop rules to protect the rights and welfare of subjects of human experimentation.' These efforts have focused primarily on codifying the rights of subjects, and protecting their welfare by prior peer review of research protocols. In recent years research regulations have been under attack by politicians, drug companies, researchers, and advocacy groups. In less than half a century, human experimentation has been transformed from a suspect activity into a presumptively beneficial activity. With this transformation, traditional distinctions between experimentation and therapy, subject and …

Setting Standards For The Use Of Dna-Typing Results In The Courtroom - The State Of The Art, George J. Annas

Faculty Scholarship

DNA typing, sometimes called DNA fingerprinting or profiling, has been the focus of heated exchanges in courtrooms, the popular press, and scientific journals. It is a powerful law-enforcement weapon, especially in cases of rape, because it has the potential to exonerate a suspect or to place him at the scene of a crime. On the other hand, it is of no use in rape cases like those in which William Kennedy Smith and Mike Tyson were accused, in which coitus is conceded to have occurred and the only real issue is consent. When should judges permit evidence from DNA typing …

Changing The Consent Rules For Desert Storm, George J. Annas

Faculty Scholarship

Shortly before the beginning of Operation Desert Storm, during Desert Shield, the U.S. military sought a waiver of requirements for informed consent for the use of investigational drugs and vaccines on our troops in the Persian Gulf. The danger of chemical and biologic warfare was seen as demanding this waiver, although the Nuremberg Code, other codes of medical ethics, and respect for the human rights of American soldiers seemed to caution against it. One year later it seems reasonable to review this decision. The legal maneuvering to revise consent regulations for wartime conditions provides a case study that highlights three …