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2005

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Full-Text Articles in Law

Some Reflections On The Symposium: Judging, The Classical Legal Paradigm, And The Possible Contributions Of Science, Christina E. Wells Nov 2005

Some Reflections On The Symposium: Judging, The Classical Legal Paradigm, And The Possible Contributions Of Science, Christina E. Wells

Missouri Law Review

One theme running through the many excellent contributions to this symposium involves the myriad influences of judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices' personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges' personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal …

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Does Loss Of Custody Of A Child Resulting From Attorney Negligence Cause Damage, Jesse E. Weisshaar Nov 2005

Does Loss Of Custody Of A Child Resulting From Attorney Negligence Cause Damage, Jesse E. Weisshaar

Missouri Law Review

Attorneys face the prospect of legal malpractice actions on a daily basis and in regard to every type of legal issue with which they deal. Indeed, a lawyer's negligence subjects him to liability whether he has mishandled a multimillion dollar business transaction or failed to adequately represent his client in a custody battle over the client's children. Whereas the harm in the former example is clearly monetary, the latter example presents the issue of whether the client can recover monetary damages for loss of custody of his child, a harm that is non-economic in nature. While few people would likely …

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Which One Here Is Not Like The Others - No Third-Party Standing For Lawyers To Assert Indigent Criminal Defendants' Right To Counsel On Appeal, Courtney C. Stirrat Nov 2005

Which One Here Is Not Like The Others - No Third-Party Standing For Lawyers To Assert Indigent Criminal Defendants' Right To Counsel On Appeal, Courtney C. Stirrat

Missouri Law Review

In Kowalski v. Tesmer, the Supreme Court held that attorneys lack standing to assert the rights of indigent criminal defendants.1t The Court's application of its prudential rules of standing presents great concern, as it leaves thirty years of precedent in doubt. This Note examines the parameters of the Court's prudential standing requirements and the great shift in thirdparty standing after Kowalski.1

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The Professionalism Crisis: How Bar Examiners Can Make A Difference, Clark D. Cunningham Nov 2005

The Professionalism Crisis: How Bar Examiners Can Make A Difference, Clark D. Cunningham

Faculty Publications By Year

No abstract provided.

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Reflections On The Law And Economics Of Copyright Scope And Its Implications For Fair Use, Matthew J. Sag Nov 2005

Reflections On The Law And Economics Of Copyright Scope And Its Implications For Fair Use, Matthew J. Sag

Public Law and Legal Theory Papers

Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. The article explores the relationship between copyright scope and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. This analysis of copyright scope establishes that (1) the efficiency of private ordering is the key determinant of the ideal level of copyright scope; (2) the complexity of the welfare-scope relationship is such that we are unlikely to be able to ascertain a generalizable …

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Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai Nov 2005

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

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The Questioning Attitude: Questions About Derrida, Martin Stone Nov 2005

The Questioning Attitude: Questions About Derrida, Martin Stone

Cardozo Law Review

No abstract provided.

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Surviving Common Law: Silence And The Violence Internal To The Legal Sign, Peter D. Rush Nov 2005

Surviving Common Law: Silence And The Violence Internal To The Legal Sign, Peter D. Rush

Cardozo Law Review

No abstract provided.

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Vergil And Founding Violence, Michèle Lowrie Nov 2005

Vergil And Founding Violence, Michèle Lowrie

Cardozo Law Review

No abstract provided.

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An Analysis Of The Financial Impact Of S. 852: The Fairness In Asbestos Injury Resolution Act Of 2005, Lester Brickman Nov 2005

An Analysis Of The Financial Impact Of S. 852: The Fairness In Asbestos Injury Resolution Act Of 2005, Lester Brickman

Cardozo Law Review

No abstract provided.

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Undue Process: Congressional Referral And Judicial Resistance In The Schiavo Controversy, Adam M. Samaha Nov 2005

Undue Process: Congressional Referral And Judicial Resistance In The Schiavo Controversy, Adam M. Samaha

Public Law and Legal Theory Working Papers

No abstract provided.

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Justice Breyer's Democratic Pragmatism, Cass R. Sunstein Nov 2005

Justice Breyer's Democratic Pragmatism, Cass R. Sunstein

Public Law and Legal Theory Working Papers

There have been many efforts to reconcile judicial review with democratic self-government. Some such efforts attempt to justify judicial review if and to the extent that it promotes self-rule. Active Liberty, by Justice Stephen Breyer, is in this tradition; but it is also marked by a heavy pragmatic orientation, emphasizing as it does the need for close attention to purposes and to the importance of consequences to legal interpretation. Its distinctiveness lies in its effort to forge close connections among three seemingly disparate ideas: a democratic account of judicial review; a purposive understanding of legal texts; and a neo-pragmatic emphasis …

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After Roper V. Simmons: Keeping Kids Out Of Adult Criminal Court, Ellen Marrus, Irene Merkel Rosenberg Nov 2005

After Roper V. Simmons: Keeping Kids Out Of Adult Criminal Court, Ellen Marrus, Irene Merkel Rosenberg

San Diego Law Review

When children kill, as they always have and probably always will, the state must juggle two distinct and oftentimes conflicting concerns: its police power and its parens patriae interest. These concerns are not, however, mutually exclusive. There is a delicate balance that must be maintained. Clearly, the state must incapacitate and punish children who commit serious criminal acts, but, as Simmons says, that does not mean that minors can be executed, nor, as the Authors maintain, be consigned to living death behind bars without any hope of respite. The legal system must somehow be adjusted for children.

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The Billable Hours Derby: Empirical Data On The Problems And Pressure Points, Susan Saab Fortney Nov 2005

The Billable Hours Derby: Empirical Data On The Problems And Pressure Points, Susan Saab Fortney

Faculty Scholarship

This article considers the consequences of law firm use of the hourly billing method and the recent increase in billable hour requirements. Part I of this article describes the rationale and methodology of an empirical study conducted in 2005 that explored attorney work-life issues and employer efforts to assist attorneys in dealing with work-life conflicts. Part II summarizes select study findings related to billable hours requirements and pressure. Part III concludes by considering what forces and players will change the current course of conduct in which law firm leaders treat increases in billable hours expectations as a necessary evil.

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The Opinion Volume 44 Issue 3 – November 1, 2005, The Opinion Nov 2005

The Opinion Volume 44 Issue 3 – November 1, 2005, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated November, 1, 2005

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Once And Future Copyright, James Gibson Nov 2005

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

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Davidson As Derridean: Analytic Philosophy As Deconstruction, Samuel Wheeler Nov 2005

Davidson As Derridean: Analytic Philosophy As Deconstruction, Samuel Wheeler

Cardozo Law Review

No abstract provided.

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A Brief Survey Of Deconstruction, Pierre Schlag Nov 2005

A Brief Survey Of Deconstruction, Pierre Schlag

Cardozo Law Review

No abstract provided.

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J.D., Peter Goodrich Nov 2005

J.D., Peter Goodrich

Cardozo Law Review

No abstract provided.

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Letter To Derrida/America, Anton Schütz Nov 2005

Letter To Derrida/America, Anton Schütz

Cardozo Law Review

No abstract provided.

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Policy Formulation At The Nlrb: A Viable Alternative To Notice And Comment Rulemaking, Claire Tuck Nov 2005

Policy Formulation At The Nlrb: A Viable Alternative To Notice And Comment Rulemaking, Claire Tuck

Cardozo Law Review

No abstract provided.

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Current State Of Co-Employee Immunity Under Workers' Compensation Law, The, Michael S. Kruse Nov 2005

Current State Of Co-Employee Immunity Under Workers' Compensation Law, The, Michael S. Kruse

Missouri Law Review

The exclusivity provision of Missouri's Workers' Compensation Act ("the Act") essentially constitutes a statutory mandated quid-pro-quo agreement amongst employees and their employers. Under the terms of the Act, employers incur the burden of no-fault liability for workplace injuries. The Act states that "[e]very employer ... shall be liable, irrespective of negligence, to furnish compensation . . . for personal injury or death of the employee by accident arising out of and in the course of [his] employment." In exchange for employers incurring this burden, the Act statutorily abrogates any common law right of action the employee may hold against the …

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Burger-Blackmun Relationship: Lessons For Collegiality From The Blackmun Papers, The, Duane Benton, Barrett J. Vahle Nov 2005

Burger-Blackmun Relationship: Lessons For Collegiality From The Blackmun Papers, The, Duane Benton, Barrett J. Vahle

Missouri Law Review

The [Blackmun] Papers have extensive correspondence, diaries, and other documents illuminating the relationship between Blackmun and Burger. The general thesis presented by Woodward & Amrstrong, Lewis, Greenhouse, Totenberg, and Munford is accurate. This article examines the Papers in detail, against the backdrop of the literature on collegiality. We find a very complex relationship: in the 1950s and 1960s, Burger provided a vital Washington connection for, and political clout to, Blackmun. During those two decades, Blackmun was a key link back to Minnesota, and a solic supporter for Burger. When the two became colleagues on the Supreme Court in 1970, their …

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From The President, Claire M. Germain Nov 2005

From The President, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

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Legal Ethics And The Separation Of Law And Morals, W. Bradley Wendel Nov 2005

Legal Ethics And The Separation Of Law And Morals, W. Bradley Wendel

Cornell Law Faculty Publications

This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of …

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Introducing Discipline: Anthropology And Human Rights Administrations, Iris Jean-Klein, Annelise Riles Nov 2005

Introducing Discipline: Anthropology And Human Rights Administrations, Iris Jean-Klein, Annelise Riles

Cornell Law Faculty Publications

Anthropologists engage human rights administrations with an implicit promise that our discipline has something unique to offer. The articles in this special issue turn questions about relevance and care so often heard in the context of debates about human rights outside in. They focus not on how anthropology can contribute to human rights activities, but on what anthropological encounters with human rights contribute to the development of our discipline. They ask, how exactly do we render the subject relevant to anthropology? Reflecting on some ways anthropologists in this field have dispensed care for their subjects, the authors highlight two modalities …

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Overlooked In The Tort Reform Debate: The Growth Of Erroneous Removal, Theodore Eisenberg, Trevor W. Morrison Nov 2005

Overlooked In The Tort Reform Debate: The Growth Of Erroneous Removal, Theodore Eisenberg, Trevor W. Morrison

Cornell Law Faculty Publications

Disputes over forum often center on whether a case should proceed in state or federal court. Removal to federal court can trigger a costly forum struggle. When a state case is removed to federal court only to be sent back to state court, the time and resources incurred in the detour are a toll on the judicial system and waste parties’ resources. We find erroneous removal to be an increasing problem. From 1993 to 2002, a period when state tort filings noticeably decreased, the number of removed diversity tort cases increased by about 10 percent to about 8,900 per year. …

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Willful Judging Of Harry Blackmun, The, Gregory C. Sisk Nov 2005

Willful Judging Of Harry Blackmun, The, Gregory C. Sisk

Missouri Law Review

As an invited guest at a symposium in which a central place is given to examining the personal papers and judicial life of a jurist who is esteemed and even revered by many of those participating and attending, my playing of a negative note may sound discordant. Indeed, it may appear downright rude. Because my hosts assured me that the academic ideal of balanced perspectives and critical analysis animated this symposium, and that they would expect nothing less than such a countervailing viewpoint from me, I feel less churlish than otherwise I might.

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Justice Blackmun And The Spirit Of Liberty, Richard C. Reuben Nov 2005

Justice Blackmun And The Spirit Of Liberty, Richard C. Reuben

Missouri Law Review

As we see in this symposium, Justice Harry Blackmun is as controversial in death as he was in life. His strongest critics, such as Professor Greg Sisk, view the Justice as an unprincipled judge who let his personal views on the issues before the Court control his jurisprudence.' More damning words cannot be spoken about a judge, and Roe v. Wade of course is the case they focus on. His strongest proponents, most famously Yale Law School Dean Harold Koh and Stanford Law School Professor Pam Karlan, view the Justice as a man of high principle who worked carefully, methodically, …

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Reflections On Judging: A Discussion Following The Release Of The Blackmun Papers, Martha Dragich Pearson, Christina E. Wells Nov 2005

Reflections On Judging: A Discussion Following The Release Of The Blackmun Papers, Martha Dragich Pearson, Christina E. Wells

Missouri Law Review

Justice Blackmun's papers were opened to the public on March 4, 2004, the fifth anniversary of his death. Held in the Manuscript Division of the Library of Congress, the collection includes over half a million items, many handwritten by Justice Blackmun. Anyone can read them. For legal scholars, this kind of research can only be described as exhilarating and many of the articles in this symposium draw on research from Justice Blackmun's papers. For the public, the release comes at a time when the interest in judges is particularly acute.

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