Legal Writing and Research Commons^™

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

Instilling An Appreciation Of Legal Ethics And Professional Responsibility In First-Year Legal Research And Writing Courses, Beth Cohen

Faculty Scholarship

The Author suggests that the First-year legal research and writing classes provide the logical forum to remind students of the importance of honesty and integrity both to their work and to the profession and to society as a whole. The Author believes that teachers would do well to take advantage of this unique opportunity to provide such lessons early and often and more importantly, as part of the regular legal research and writing curriculum.

"Skilling" Time, Peter B. Knapp

Faculty Scholarship

This article describes disagreements about the "MacCrate Report" on skills education for law students, as well as the connections between the Report's recommendations and legal education at William Mitchell College of Law. The final commentary focuses on what William Mitchell can do to further ensure that teaching prepares students for the learning they will have to do when they begin working as lawyers.

Corrective Justice For Moderns, George P. Fletcher

Faculty Scholarship

Once when I was reading a Soviet commentary on criminal procedure, a friend noticed the cyrillic title and asked whether the Russian book was fiction or nonfiction. My initial tendency was to give the straight response, "Nonfiction, of course," but then I thought about what I was reading and began to laugh. Now if someone asked me whether Jules Coleman's Risks and Wrongs was fiction or nonfiction, I would want to give the straight reply. Thinking about the book, however, I hesitate. And I do not laugh.

It is becoming more and more difficult these days to distinguish fiction from …

Against The Tyranny Of Paraphrase: Talking Back To Texts, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

The Mind In The Major American Law School, Lee C. Bollinger

Faculty Scholarship

Legal scholarship is significantly, even qualitatively, different from what it was some two or three decades ago. As with any major change in intellectual thought, this one is composed of several strands. The inclusion in the legal academic community of women and minorities has produced, not surprisingly, a distinctive and at times quite critical body of thought and writing. The emergence of the school of thought known as critical legal studies has renewed and extended the legal realist critique of law of the first half of the century. But more than anything else it is the interdisciplinary movement in legal …

The Supreme Court's Narrow View On Civil Rights, Jack M. Beermann

Faculty Scholarship

The right to choose abortion, although recently significantly curtailed from its original scope,' is a federally protected liberty interest of women, and is at least protected against the imposition of "undue burdens" by state and local government.² Some of the most serious threats to women's ability to choose abortion have come not from government regulation, but from private, national, organized efforts to prevent abortions. In addition to seeking change through the political system, some of these organizations, most notably Operation Rescue, have focused on the providers of abortion, and have attempted to prevent abortions by forcibly closing abortion clinics …

Editing, Carol Sanger

Faculty Scholarship

In May 1993, I published a book review of Richard Posner's Sex and Reason. The review was modest in length and in purpose, part of an informal division of labor undertaken by the many critics of Sex and Reason. It challenged Judge Posner's claim that an economic analysis of sex was something new and argued that women have been making rational choices with regard to sex and reproduction for quite a long time, something that Judge Posner's book seemed to miss and misunderstand throughout.

Readers of the review (the members of my MCI Friends and Family Plan) have …

Throwing Stones At The Mudbank: The Impact Of Scholarship On Administrative Law, Ronald A. Cass, Jack M. Beermann

Faculty Scholarship

The impact of administrative law scholarship on administrative law seems at first blush both a relatively straightforward issue and one that academicians should be especially eager to engage. But there is reason to doubt both propositions. First, any effort to grapple with this topic compels the conclusion that the issue is by no means straightforward. As Peter Strauss recently observed, the question of the influence of administrative law scholarship necessarily becomes as well the influence of active engagement in the practice of administrative law on scholarship.' Moreover, the questions implicated in this assessment cannot be narrowly compassed. The topic requires …

The Poverty Of Academic Rhetoric, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Personal Narratives And Racial Distinctiveness In The Legal Academy, Maria O'Brien

Faculty Scholarship

A small group of legal academicians is embroiled in yet another debate that, to the uninitiated at least, appears to have little or nothing to do with "the law." ¹ This time the issue is the ideology of legal writing style-that is, does a growing, unique body of legal scholarship that draws on the personal experiences of minority faculty and, arguably, reflects the racial oppression these scholars have suffered, produce "distinct normative insights?" ² Professor Patricia Williams of the University of Wisconsin clearly believes that it does.

In her new book, The Alchemy of Race and Rights,³ which is …

Good Legal Writing: A Guide For The Perplexed, Samuel K. Murumba

Faculty Scholarship

No abstract provided.

Interest Group Politics And Judicial Behavior: Macey's Public Choice, Jack M. Beermann

Faculty Scholarship

The economic theory of government has lately gained the acceptance in legal circles that it has long enjoyed in political science and economics. The economic theory, also known as "public choice," analyzes and explains government action and private political activity according to the basic assumption of economics, that individuals respond to economic incentives in their environments in a self-interested manner. The economic theory is thus useful descriptively, to explain diverse political phenomena, and prescriptively, to help formulate reform strategy.

Academic Freedom: A Bibliography, Janet Sinder

Faculty Scholarship

No abstract provided.

Intoxication And Aggression, Jeffrey Fagan

Faculty Scholarship

Evidence of an association between use of illicit substances and aggressive behavior is pervasive. But the precise causal mechanisms by which aggression is influenced by intoxicants are still not well understood. Research on intoxication and aggression often has overlooked the nonviolent behavior of most substance users, controlled use of substances, and the evidence from other cultures of a weak or nonexistent relation between substance use and aggression. There is only limited evidence that ingestion of substances is a direct, pharmacological cause of aggression. The temporal order of substance use and aggression does not indicate a causal role for intoxicants. Research …

A Critical Approach To Section 1983 With Special Attention To Sources Of Law, Jack M. Beermann

Faculty Scholarship

The Civil Rights Act of 1871¹ ("§ 1983") establishes a tort-like remedy for persons deprived of federally protected rights "under color of law."'² While the statute's broad language provides a remedy for violations of federal constitutional and statutory rights, the statute itself provides little or no guidance regarding important subjects such as the measure of damages, the availability of punitive damages, the requirements for equitable relief, the statute of limitations, survival of claims, proper parties, and immunities from suit.³...

...The first part of this article examines the narrowly "legal" analysis of § 1983 in the cases …

Baseline Questions In Legal Reasoning: The Example Of Property In Jobs, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

In what follows, we critique at-will employment by focusing on the baselines that underlie the analysis. Our ultimate goal is to develop persuasive arguments to move courts and businesses to provide greater job security for workers. One possible reason the courts have been so reluctant to change employment law is that judges analyze job security issues from the standpoint of a series of baselines which have the effect of creating a presumption against job security that is almost impossible to overcome. These baseline assumptions effectively place the burden of proof on advocates of job security.

Judges fail to recognize that …

Law Library Management: An Annotated Bibliography, Janet Sinder

Faculty Scholarship

No abstract provided.

Book Review - A Guide To Legal Research In Virginia (Edited By John D. Eure), Steven D. Hinckley

Faculty Scholarship

Review of A Guide to Legal Research in Virginia, edited by John D. Eure. Charlottesville, VA: Committee on Continuing Legal Education, Virginia Law Foundation, 1989.

A Preface To Constitutional Theory, David B. Lyons

Faculty Scholarship

We have a plethora of theories about judicial review, including theories about theories, but their foundations require stricter scrutiny. This Essay presents some aspects of the problem through an examination of two important and familiar ideas about judicial review.

The controversy over "noninterpretive" review concerns the propriety of courts' deciding constitutional cases by using extraconstitutional norms. But the theoretical framework has not been well developed and appears to raise the wrong questions about judicial review. Thayer's doctrine of extreme judicial deference to the legislature has received much attention, but his reasoning has been given less careful notice. Thayer's rule rests …

Bounds And Beyond: A Need To Reevaluate The Right Of Prison Access To The Courts, Steven D. Hinckley

Faculty Scholarship

The author argues that the 1977 United States Supreme Court decision in Bounds v. Smith insufficiently protects the right of prisoners to represent themselves before the courts by failing to require state and federal correctional facilities to establish and maintain adequately stocked prison law libraries and to provide prisoners with the option to use those libraries as their means of gaining meaningful access to the courts.

Rent Seeking And The Compensation Principle, Thomas W. Merrill

Faculty Scholarship

The reaction to Richard Epstein's Takings has been almost universally negative. Joseph Sax finds Epstein the "prisoner of an intellectual style so confining and of a philosophy so rigid that he has disabled himself from seeing problems as beyond the grasp of mere formalism." Thomas Grey concludes that "Takings belongs with the output of the constitutional lunatic fringe" and is "a travesty of constitutional scholarship." Thomas Ross, writing in this Law Review, says that, at least from an academic perspective, Takings is "a patent and howling failure." Epstein has provoked even the student editors of the Harvard Law Review …

Contract Law As A System Of Values, Jack M. Beermann

Faculty Scholarship

Contract law has changed dramatically since the heyday of free contract ideology. The false conflict in the cases and literature between facilitation of market transactions and regulation to achieve social aims has been transcended, largely due to the realization that social aims are behind all of contract law. In place of this false conflict, new questions about the values advanced through contract law have been posed. Contract theory needs an account of the values underlying doctrines that were previously justified (wrongly) as means to effectuate the intent of the parties. Hugh Collins has given us such an account in his …

Crisis? What Crisis?, Jack M. Beermann

Faculty Scholarship

Bureaucracy is a favorite target for criticism from the left and the right. Bureaucratization of an organization is claimed to cause excessive reliance upon rigid rules or the absence of rules altogether.' Few people want to be part of a large bureaucracy and fewer still want to depend on a bureaucracy for important benefits or policymaking. In recent years, the business of the federal judiciary has increased dramatically. Congress has attempted to meet the rising caseload by increasing the number of federal judges and assistants. As the federal court system becomes more and more like administrative bureaucracies, the question has …

An Overview Of Health Law Research And An Annotated Bibliography, Richard A. Danner, Claire M. Germain

Faculty Scholarship

No abstract provided.

Visions Of Practice In Legal Thought, William H. Simon

Faculty Scholarship

This essay contrasts the vision of law practice expressed in the established professional culture with a vision derived from recent Critical legal writing.

Law Books And Legal Publishing In America, 1760-1840, Jenni Parrish

Faculty Scholarship

No abstract provided.

The Supreme Court In Current Literature, Jenni Parrish, Roy Mersky

Faculty Scholarship

No abstract provided.

A Welcome, Michael I. Sovern

Faculty Scholarship

Though my offering here is more ceremonial than intellectual, I accepted with alacrity the editors' invitation to submit a brief, welcoming essay for Volume 1, Number 1 of the Columbia Journal of Environmental Law. I write, first, to symbolize our School's deep and abiding commitment to environmental studies, a commitment evidenced by the extraordinary number of Columbia students, faculty and alumni who have contributed and are contributing to the development of environmental law. Professors Grad, Jones, Murphy, and Rosenthal; Russel Train, David Sive and Jerome Kretchmer; and the editors of this Journal, among many others, come quickly to mind. I …

Further Observations About The Survey Of Foreign And International Law Collections In Selected United States Law Libraries: 1972-1973, Igor I. Kavass

Faculty Scholarship

No abstract provided.