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Medea And The Un-Man: Literary Guidance In The Determination Of Heinousness Under Maynard V. Cartwright, Paul J. Heald

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In particular, this Essay brings Dante, C.S. Lewis, and Euripides to bear on a discrete problem examined by the U.S. Supreme Court in Maynard v. Cartwright. Reading Dante's Inferno, Lewis's Perelandra, and Euripides's Medea provides guidance in responding to the Court's mandate that the state channel discretion in capital sentencing. Specifically, these works imply an ethical framework for determining what constitutes an "especially heinous, atrocious, or cruel" murder. Other literary texts are certainly relevant to Maynard. This Essay, however, is not an attempt to survey comprehensively and distill the insights provided by all relevant material, but rather …

Critical Race Theory And Proposition 187: The Racial Politics Of Immigration Law, Ruben J. Garcia

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Immigration law and politics have been historically intertwined with racial prejudice. Many of those who have called for immigration restrictions have also sought an end to the racial and cultural diversity brought by immigrants. With the end of legally sanctioned race discrimination in the 1960s, immigration rhetoric has lost some of its overt racist overtones. However, in the 1990s, many politicians and lawmakers have emphasized the difference between “legal” and “illegal” immigration. This change begs a central question: Have the racist motivations of past immigration law and policy been completely displaced by a concern for law and order? This Comment …

First And Last Chance: Looking For Lesbians In California's Fifties Bar Cases, Joan W. Howarth

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Do all of us who choose members of our own sex as objects of desire and as sexual partners share some meaningful common identity, such as “homosexual,” “gay” or perhaps “queer”? The classifications “homosexual” and “gay” claim for themselves just that kind of inclusiveness; that is, that the gay world includes people of all races, all classes and any possible gender identity. You, me, James Baldwin, Gertrude Stein, J. Edgar Hoover: we are all gay together. In this way “homosexual” or “gay” is a generic term, like, for example, “human being.” But we know that the alleged inclusiveness masks just …

Economics As One Of The Humanities; An Ecumenical Response To Weisberg, West, And White, Paul J. Heald

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The Law and Literature movement seems to have a deadly adversary: the Law and Economics movement. Several of the most respected literary lawyers have recently argued that economic discourse subverts the goals of humanistic scholarship. Richard Weisberg decries, for example, “the insurgency of ‘free market’ economics, a disgracefully self-serving system of ethical reductionism and human evasion [that has] attracted masses of practitioners away from the essence of their fields, away from the passions, the hopes, the reality of the world around them.” Robin West has criticized “economic man” for his “empathic impotence,” and has suggested replacing him with a more …

The European Bank For Reconstruction And Development And The Post-Cold War Era, John Linarelli

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No abstract provided.

Deciding To Kill: Revealing The Gender In The Task Handed To Capital Jurors, Joan W. Howarth

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Day after day, across this country, ordinary people are summoned to court for a selection process that ultimately leaves them in a room deciding, with other jurors, whether a criminal defendant should be killed. The task handed to these jurors is an awesome, personal, moral decision, encased within the complex legal standards and procedures that constitute modern capital jurisprudence. The doctrine that created and sustains this moment of conscience reflects an ongoing struggle of rule against uncertainty, reason against emotion, justice against mercy, and thus, at one level, male against female. Capital jurisprudence -- the law for deciding whether to …

Our Juries, Our Selves: The Power, Perception, And Politics Of The Civil Jury, Laura Dooley

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No abstract provided.

Unequal Racial Access To Kidney Transplantation, Laura Dooley, Ian Ayres, Robert S. Gaston

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Access to medical care is an issue of acute and increasing importance in the United States, a country in which the most promising of ground-breaking technologies may be available to only the privileged few. Although debate about the problem of unequal access to medical care typically centers on financial obstacles to advanced therapies and the obvious inequity of allowing patients' ability to pay to drive treatment decisions, issues of equitable access for patients of both genders and all racial and ethnic backgrounds increasingly have come into focus. These concerns about equitable access animate the ongoing debate about how government should …

Mindlessness And Nondurable Precautions, Paul J. Heald

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Assuming initially that negligence law does not make the distinction between durable and nondurable precautions, this Article will first explain in economic terms why the failure of courts to take into account the cost of remembering may nonetheless be efficient. A substantial body of research on the phenomenon of mindless decisionmaking ("scripting") suggests that most remembering is automatic--a nonconscious response to frequently encountered patterns of stimuli. Script theory suggests that once the behavioral script is in place, an automatic response operates at a very low cost. If so, the failure of courts to account for the cost of remembering would …

Machiavelli And The Politics Of Welfare, National Health, And Old Age: A Comparative Perspective Of The Policies Of The United States And Canada, Camilla Watson

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This Article maintains that in order to fully comprehend the politics of welfare, retirement security, and national health coverage, it is necessary to examine Machiavellian principles in relation to the variables of economic development and inter-party competition. If the principles of Machiavelli are applied in a slightly different and more constructive manner, they may facilitate reform of the American welfare, retirement, and national health systems. Now that the political balance in the United States has shifted from the conservative to the liberal, the time is ripe to consider reforming the entire Social Security system and instituting a comprehensive national health …

Race, Riots And The Rule Of Law, Deborah Waire Post

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No abstract provided.

Nurturing The Impulse For Justice, Lynne Henderson

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No abstract provided.

Experimenting With The "Right To Die" In The Laboratory Of The States, Thomas A. Eaton, Edward J. Larson

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The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and …

Reactions To Opression: Jurisgenesis In The Jurispathic State, John Valery White

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This Note offers a model for analyzing the political and legal traditions of oppressed communities and developing a jurisprudence that accurately reflects the communities' views. Under this model, each of these diverse views can be understood from one of four perspectives: parochialism, fatalism, neo-liberalism, and individualism. These four perspectives are defined by an oppressed community's members' aspirations for liberation. Different ideals of justice and liberation underlie each perspective. Though touching on some of the communities' sentiments, the examinations of scholars of color have thus far been largely piecemeal, overemphasizing certain views, unwittingly combining divergent views, or marginalizing and dismissing unpopular …

A Lost Episode Of "Meeting Of The Minds": Posner, Kelman, Holmes, And Pascal, Paul J. Heald

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SCENE ONE: Mr. Allen enters first, carrying a sheaf of photocopied papers, and sits behind the desk. Next enter Mr. [Richard] Posner, Mr. [Blaise] Pascal, Mr. [Oliver Wendell] Holmes, and Mr. [Mark] Kelman all carrying similar papers. Holmes and Posner take seats to Allen's right; Kelman and Pascal seat themselves to Allen's left.

MR. ALLEN: Gentlemen, I would like to thank you for coming. I know that Mr. Pascal has had an especially difficult trip. I myself just flew in from the coast, and boy are my arms tired (polite chuckles from Posner and Kelman).

As you know, we are …

Legal Evolution And Legislation, Alan Watson

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For several years I have been working on two relationships: the relationship between legal rules and the society in which they operate, and the relationship between sources of law and the way law evolves. Some critics have suggested that in discussing the evolution of law, I have understated the revolutionary force of legislation and statutory law. This issue will be the focus of this article.

A Bicentennial Symposium--The Constitution And Human Values: The Unfinished Agenda, Milner S. Ball

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The participants in this Symposium share a commitment to explore the question whether law--constitutional law in particular--is one of the humanities and therefore subject to understanding, critique, conceptualization, and practice in freshly humanizing modes. These authors--lawyers, poets, philosophers, writers, activists--make no great claims for their individuals labors or their shared enterprise. They prefer instead to let the work speak for itself.

Textbooks, Judges, And Science, Edward J. Larson

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This Article offers a spectator's guide to this controversy by three central issues in Aguillard. First, the Article examines the persistent interest of both creationists and evolutionists in the content of public-school biology instruction, which is reflected in passage of the Balanced Treatment Act, and the overwhelming, organized opposition to its implementation. Focusing on the impact o science in recent decisions, the second section of the Article reviews judicial responses to the cases spawned by the controversy over creationist and evolutionary instruction. The Article concludes by exploring the central role played by scientific opinion in the legal arguments for and …

Law In A Reign Of Terror, Alan Watson

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A few years ago I published a book, The Nature of Law, which was activated primarily by three long held beliefs. First, law is a means, not an end in itself; and legal rules, principles, decisions do not come into being without some purpose. The end envisaged for a legal rule or decision may be immediate -- to give financial compensation to a particular victim of negligence, for instance -- or more remote -- to promote general happiness or bolster the economic dominance of the ruling class, for example -- but that does not concern us here. What, in …

Obligation: Not To The Law But To The Neighbor, Milner S. Ball

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In this article I will first address the strongest yet still unsatisfactory argument for an obligation to obey the law, the argument that the government and its officers are obligated to obey the law. I will then consider the weaker, more satisfactory argument that citizens have an obligation to obey the law. I will conclude by taking up the issue that I find more interesting and important: the absence of a biblical basis for an obligation to obey the law.

Electoral Folklore: An Empirical Examination Of The Abortion Issue, Jeffrey W. Stempel

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Though partisans on both sides claim credit for electoral victories and defeats, and politicians treat both groups with deference, few studies have attempted to gauge the impact of the abortion issue in more than an anecdotal manner. In 1976, NARAL noted that of the 13 members of the U.S. Representatives that lost re-election bids, nine were pro-life, and four were pro-choice. A study conducted by the Alan Guttmacher Institute of the 1974 House races found that, in “competitive” districts, 92 percent of the pro-choice candidates studied were re-elected while only 61 percent of the pro-life candidates were returned to Congress, …

Rawls, Justice, And The Income Tax, Charles R.T. O'Kelley

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To the extent the primacy of justice is acknowledged in tax policy debate, such acknowledgment is coupled with the assertion that, of course, questions of justice cannot be meaningfully debated. The discussants then attempt to resolve the issue in question by use of ad hoc arguments of fairness and efficiency. The major purpose of this article is to show that not only is justice the primary issue, but that questions of justice can be meaningfully addressed. First, I will examine some of the ad hoc arguments of fairness and efficiency which have been made by proponents of a consumption base …

Society's Choice And Legal Change, Alan Watson

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This Article is one of a continuing series of writings by the author on both the connection between a society and the legal rules and institutions that operate within it and on the forces that control legal change. My aim is to express more clearly than I have previously the role of lawyers and the legal tradition in changing the law, and the implications of this role for social choice theory in the realm of law.

An Assessment Of Alternative Strategies For Increasing Access To Legal Services, Jeffrey W. Stempel

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Since the late 1930s, lawyers have argued that their services are not used to the fullest advantage by a large segment of the population. More recently, other concerned groups such as trade unions and consumer organizations also have become convinced that there is an underutilization of lawyers' services, and that it is important to increase access to such services. As a result, attempts have been made to develop alternatives to the traditional methods of providing legal services that to date have proved inadequate in meeting the legal needs of the public. Legal clinics have proliferated, prepaid legal services plans have …

Production And Consumption Of Informal Law: A Model For Identifying Information Loss, Sandra M. Huszagh, Fredrick W. Huszagh

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This Article seeks to indicate where the probability of citizen ignorance is greatest, and to identify the important independent variables that determine the probable level of ignorance. On the basis of this analysis, the Article sets forth a model designed to facilitate development of law communication reforms that can restore legitimacy to the government's assumption that ignorance is not a proper defense to noncompliance. The model can be applied at any jurisdictional level. The nine charts at the end of the Article illustrate how various communication factors individually and cumulatively condition information flow at each level.

A Model Of The Law Communication Process: Formal And Free Law, Sandra M. Huszagh, Fredrick W. Huszagh

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This Article and the one to be published in the next issue depict how government decrees are made available to citizens and identify those conditions under which various citizens are not likely to acquire the knowledge essential for the deference that American government requires. The process by which government communicates its commands to citizens is often inadequate to make individuals or organizations aware of applicable laws. Even if the citizen receives the law, he may fail to understand or respond to the law as the law-drafters intended. The roots of these failures can be examined alternatively by (1) analyzing the …

The Prospects For Individual Freedom: Toward Greater Fairness For All, J. Ralph Beaird, C. Ronald Ellington

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Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means.

Imagine that on June 1, 2001, the latest issue of United States Law Week listed the following cases for oral argument at the next October term of the United States Supreme Court....

Federalizing Through The Franchise: The Supreme Court And Local Government, R. Perry Sentell Jr.

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Decisionmaking at the local government level has been significantly affected by both national legislation and federal court decisions seeking to protect the right to vote. Indeed, Professor Sentell feels that the Supreme Court, through decisions invalidating restrictions on the franchise, has involved itself to an unparalleled degree in heretofore purely local affairs. In examining these decisions, the author queries if legitimate voting regulations may be now imposed by local governments. In so doing he focuses upon the Court's equal protection analysis of extraordinary majority vote requirements and elections restricted to certain segments of the electorate and upon the expansive judicial …

Hawkins V. Town Of Shaw: The Court As City Manager, C. Ronald Ellington, Lawrence F. Jones

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For over one hundred years Congress and the federal courts have pursued the goal of racial equality in the United States. In areas such as voting rights, public accommodations, and housing, Congress and the courts have interacted closely, with broad judicial interpretations upholding major remedial legislation. Moreover, when confronted by official state sources of racial discrimination, courts have traditionally responded to the clear command of the equal protection clause of the fourteenth amendment without awaiting congressional action. Brown v. Board of Education stands as perhaps the best known instance in which a court has, on its own, ordered the elimination …