Civil Law Commons^™

An Essay On Uncertainty And Fact-Finding In Civil Litigation, With Special Reference To Contract Cases, Alex Stein

Faculty Scholarship

No abstract provided.

Deliberative Democracy, Overlapping Consensus, And Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

A pressing concern in political and constitutional theory is how to construct a model of justification in law and politics that offers methods for securing agreement and social cooperation in the face of moral pluralism. A common goal of this work is to elaborate the requirements of deliberative democracy, that is, a model of democratic self-government that "asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it."' Two fundamental questions are: (1) are there any limits to the grounds to which citizens may appeal or the reasons that …

An Historical Analysis Of The Binding Effect Of Class Suits, Geoffrey C. Hazard Jr., John L. Gedid, Stephen Sowle

Faculty Scholarship

No abstract provided.

Original Sin And The Transaction In Federal Civil Procedure, Mary Kay Kane

Faculty Scholarship

No abstract provided.

Civil Justice Reform Symposium: Introduction, James F. Hogg

Faculty Scholarship

Many people in the United States are not happy about the way in which litigation proceeds. In a country sometimes thought to be overpopulated with lawyers, either one party or both parties in a significant percentage of civil cases apparently cannot afford, or decline to retain, legal counsel. Financing for legal aid seems to be less than adequate, pro bono services are helping to some extent, but the administration of civil justice is in danger of sinking in the swamp of pro se ("do-it-yourself') litigation. The articles in this symposium discuss ideas for reform, such as introductory resources directed at …

Conflicts Consent And Allocation After Amchem Products – Or Why Attorneys Still Need Consent To Give Away Their Clients' Money, John C. Coffee Jr.

Faculty Scholarship

If it was the goal of Silver and Baker to write a provocative article, they have succeeded. They ask probing questions; they are appropriately scornful of superficial answers; and they seek to relate their view of legal ethics to what they perceive to be the prevailing standards in the legal marketplace. All this is good. They also usefully focus on an underappreciated dichotomy: the ethical rules governing aggregated settlements in consensual litigation versus the rules applicable in aggregated nonconsensual litigation (i.e., class actions). Essentially, they argue that the rules in both contexts should be the same or very similar, the …

Religious Law And Civil Law: Using Secular Law To Assure Observance Of Practices With Religious Significance, Kent Greenawalt

Faculty Scholarship

Civil law in the United States rarely helps to enforce religious standards or demands that people perform actions whose significance relates to religious obligations. Yet, some American states do have such involvement with certain observances of Orthodox and Conservative Judaism. Many states enforce kosher requirements, to which Orthodox and some Conservative Jews adhere. The laws, which penalize fraud in the labeling of products as kosher, serve the secular interest in preventing deception of consumers. However, the laws also force the state to decide when religious regulations have been violated.

Orthodox and Conservative Jewish divorces raise a second kind of involvement. …

The New York City Charter And The Question Of Scale, Richard Briffault

Faculty Scholarship

A central issue for the New York City Charter – from the consolidation of Greater New York City a century ago until today – has been the question of scale. Or perhaps I should say the questions of scale. There really have been two questions: Is New York City large enough to deal with problems of regional scope? Does New York City have the necessary mechanisms to deal with problems that are of sublocal scope? In other words, can the City of New York provide both the regional and local governance New Yorkers need?

The creation of Greater New York …

Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond "Empty" Toleration To Toleration As Respect, Linda C. Mcclain

Faculty Scholarship

This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …

Judicial Lawmaking In A Code Jurisdiction: A French Saga On Certainty Of Price In Contract Law, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

Freedom Of Assembly And The Right To Passage In Modern English Legal History , Rachel Vorspan

Faculty Scholarship

This Article suggests, on the broadest level, that the history of the "right to passage" in the past two centuries is explicable only in terms of the complex interaction between formal legal doctrine on the one hand and social and political pressures on the other. Specific challenges to public order significantly shaped the evolution of legal rules, but these rules, once established, constrained official action and compelled the authorities at critical junctures to develop countervailing strategies. This exploration confirms that neither an externalist nor internalist approach to legal history by itself adequately explains historical change and, moreover, that the relative …

"Irresponsible" Reproduction, Linda C. Mcclain

Faculty Scholarship

In recent years, there have been countless calls for reversing the rise in irresponsibility in American society.' Calls for restoring personal responsibility in both private and political life sound from both of the major political parties as well as from various cultural critics, pundits, and academics. 2 Proponents of a return to personal responsibility wage their battle on numerous fronts, advocating a cultural revolution, a moral revival, and a recovery of "virtue" to bring about a reformation of attitudes and behaviors regarded as troublesome. 3 Many voices now urge that law and public policy should encourage, or require, personal responsibility …

The Fourth Amendment's Forcing Of Flawed Choices: Giving Content To Freedom For Residents Of Public Housing - Pratt V. Chicago Housing Authority, 848 F. Supp. 792 (N.D. Ill. 1994), Erika George

Faculty Scholarship

In April 1994, the United States District Court for the Northern District of Illinois issued a preliminary injunction halting the "Operation Clean Sweep" program operated by the Chicago Housing Authority ("CHA"). ³ The court did so over the protestations of some of those most affected, the public housing residents subjected to the CHA's searches. ⁴ Pratt v. Chicago Housing Authority⁵ attracted the attention of the nation and President William Clinton, who requested that the Justice Department investigate ways to strengthen security in public housing without offending the Fourth and Fourteenth Amendments of the United States Constitution.

Civil libertarians applauded …

With The Legislature's Permission And The Supreme Court"S Consent, Common Law Social Host Liability Returns To Minnesota, Michael K. Steenson

Faculty Scholarship

In 1990, the Minnesota Legislature amended the Civil Damage Act to allow for common law tort claims against persons 21 years old or older who knowingly provide alcohol to a person under 21 years of age. The 1990 amendment is unique because the legislature in effect appears to be releasing its stranglehold on liquor liability law, permitting the courts to apply common law negligence principles under the defined circumstances, but without providing any guidelines as to how the common law remedy should be formulated. The interpretive problems the amendment creates will eventually have to be resolved by the courts. The …

Class Actions As Instruments Of Change: Reflections On Davis V. City And County Of San Francisco, Shauna Marshall

Faculty Scholarship

No abstract provided.

Liability-Based Fee-Shifting Rules And Settlement Mechanisms Under Incomplete Information, Eric Talley

Faculty Scholarship

Recent years have seen a debate over litigation reform grow increasingly agitated. Attorneys, judges, academics, and politicians now readily and regularly disagree about how or whether to combat the debilitating litigiousness commonly purported to infect the American Bar. Within this debate, few reform proposals have received as much attention as "fee-shifting" provisions, which, in their most popular incarnation, reallocate litigation costs (particularly attorney's fees) based on the outcome of the liability phase of a trial. This attention is perhaps justified, given the nonuniformity of such rules among industrialized nations. For instance, in the British Commonwealth and much of Continental Europe, …

Rights And Irresponsibility, Linda C. Mcclain

Faculty Scholarship

There can be little doubt that a marked discontent with rights and "rights talk" is in the air, as are calls for a turn to responsibility and "responsibility talk."' In a broad range of contemporary discourses, rights are juxtaposed against responsibility as if the two were inversely or even perversely related to one another. Indeed, rights are said to license irresponsibility. Academics, politicians, and the popular media claim that Americans increasingly invoke rights talk and shrink from responsibility talk and that as a result America suffers from an explosion of frivolous assertions of rights' and a breakdown of responsible conduct. …

Pretrial Case Management Under The Amended Rules: Too Many Words For A Good Idea, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Gendering And Engendering Process, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Structuring Complexity, Disciplining Reality: The Challenge Of Teaching Civil Procedure In A Time Of Change, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

"Atomistic Man" Revisited: Liberalism, Connection, And Feminist Jurisprudence, Linda C. Mcclain

Faculty Scholarship

One of the major strains of feminist jurisprudence has criticized American law, and the liberal jurisprudence and political philosophy on which it is said to be grounded, as male or masculine.' A central theme of the critique has been that the law embodies a masculine perspective in emphasizing autonomy and the individual over interdependency and the community. Liberalism has been viewed as inextricably masculine in its model of separate, atomistic, competing individuals establishing a legal system to pursue their own interests and to protect them from others' interference with their rights to do so. Hence, it is said that liberal, …

The Survival Of Civil Law In North America: The Case Of Louisiana, Thomas E. Carbonneau

Faculty Scholarship

There are legitimate historical reasons for speaking seriously about a civil law heritage in Louisiana. French and Spanish civilian influences permeated the Louisiana Civil Code when it was first enacted in 1808. The current status of the civil law in Louisiana, however, is problematic; the American common law methodology has made significant inroads into the operation of the current legal system. Separated from its parenting source by geography, time, and culture, Louisiana civil law has become an ill-defined civilian entity that, in reality, is more of a common law process with civil law trappings. The civil law nonetheless has a …

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 …

Paradigms Lost: The Blurring Of The Criminal And Civil Law Models – And What Can Be Done About It, John C. Coffee Jr.

Faculty Scholarship

Ken Mann's professed goal is to "shrink" the criminal law. To realize this worthy end, he advocates punitive civil sanctions that would largely parallel criminal sanctions, thereby reducing the need to use criminal law in order to achieve punitive purposes. I agree (heartily) with the end he seeks and even more with his general precept that "the criminal law should be reserved for the most damaging wrongs and the most culpable defendants." But I believe that the means he proposes would be counterproductive – and would probably expand, rather than contract, the operative scope of the criminal law as an …

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 …

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 …

Group Actions In Civil Procedure: The United States Experience, Mary Kay Kane

Faculty Scholarship

No abstract provided.

The Semiconductor Chip Protection Act And Its Impact On The International Protection Of Chip Designs, Jay Erstling

Faculty Scholarship

The United States Semiconductor Chip Protection Act of 1984 (“SCPA”') has already had a profound impact on the creation of foreign legal systems of chip protection. The allure of reciprocity under the SCPA has motivated a host of nations, including Japan, the Member States of the European Communities (“EC”'), Sweden, Finland, Canada, Australia, and Switzerland, to adopt or consider adopting chip protection legislation. The SCPA has also been the impetus for multilateral discussions within the World Intellectual Property Organization (“WIPO”') and the General Agreement on Tariffs and Trade (“GATT”') to establish an international standard of chip protection. The result has …

Discovery Vices And Trans-Substantive Virtues In The Federal Rules Of Civil Procedure, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

The Golden Wedding Year: Erie Railroad Company V. Tompkins And The Federal Rules, Mary Kay Kane

Faculty Scholarship

No abstract provided.