Public Law and Legal Theory | Open Access Articles

A Normative Theory Of Public Law Remedies, Susan Sturm Jan 1991

A Normative Theory Of Public Law Remedies, Susan Sturm

Faculty Scholarship

The remedial process in public law litigation is a practice in search of a theory. Courts are actively engaged in attempting to remedy violations of constitutional and statutory norms in complex organizational settings. The traditional adversary conception of adjudication has proven inadequate to the task of structuring remedies and promoting compliance in these settings. In response, lawyers, judges, and litigants are employing a variety of innovative roles and processes that do not conform to the accepted adjudicative ideal. Remedial activity in public law litigation frequently entails negotiation, informal dialogue, ex parte communication, broad participation by actors who are not formally …

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Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski Jan 1990

Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski

Faculty Scholarship

A century ago Oliver Wendell Holmes, Jr., examined the history of negligence in search of a general theory of tort. He concluded that from the earliest times in England, the basis of tort liability was fault, or the failure to exercise due care. Liability for an injury to another arose whenever the defendant failed "to use such care as a prudent man would use under the circumstances.” A decade ago Morton J. Horwitz reexamined the history of negligence for the same purpose and concluded that negligence was not originally understood as carelessness or fault. Rather, negligence meant "neglect or failure …

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Aids And The Law: Setting And Evaluating Threshold Standards For Coercive Public Health Intervention, Eric S. Janus Jan 1988

Aids And The Law: Setting And Evaluating Threshold Standards For Coercive Public Health Intervention, Eric S. Janus

Faculty Scholarship

This article examines in detail an example of legislation that redefines the scope of permissible public health intervention and provides procedural protections compatible with modern precedent—the Minnesota Health Threat Procedures Act. This Act is an appropriate subject for close study because it is intended to be responsive to the general concerns raised by the commentators: the narrowing redefinition of the scope of coercive public health intervention and the addition of suitable procedural protections. Coercive public health legislation merits close attention because it inevitably invokes a clash of three important values. The purpose of the legislation is the protection of the …

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Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski Jan 1988

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

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Rent Seeking And The Compensation Principle, Thomas W. Merrill Jan 1987

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 …

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‘The State’ And Other Basic Terms In Public Law, Lawrence G. Baxter Jan 1982