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Public Law and Legal Theory Commons

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1991

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Articles 1 - 30 of 30

Full-Text Articles in Public Law and Legal Theory

"The Eternal Triangles Of The Law": Toward A Theory Of Priorities In Conflicts Involving Remote Parties, Menachem Mautner Oct 1991

"The Eternal Triangles Of The Law": Toward A Theory Of Priorities In Conflicts Involving Remote Parties, Menachem Mautner

Michigan Law Review

Anglo-American priority law is premised on a doctrinal-derivational approach under which "triangle conflicts" are supposed to be resolved on the basis of the legal rights that the intermediate, wrongdoing party could have transferred from the first-in-time competing party to the second-in-time competing party. In Part I, I outline the major propositions of this approach. I argue that in focusing on the intermediate party, the doctrinal-derivational approach fails to address the primary consideration relevant to resolving triangle conflicts, namely the conduct of the two remote claimants involved in the conflict. In Part II, I focus on the two remote parties involved ...


Getting From Here To There, Cynthia R. Farina Jun 1991

Getting From Here To There, Cynthia R. Farina

Cornell Law Faculty Publications


Judicial Reliance On Public Policy: An Empirical Analysis Of Products Liability Decisions, James A. Henderson Jr. Jun 1991

Judicial Reliance On Public Policy: An Empirical Analysis Of Products Liability Decisions, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.


Public Interest Organizations, J. Altomare May 1991

Public Interest Organizations, J. Altomare

California Regulatory Law Reporter

No abstract provided.


Judge Richard Posner's Jurisprudence, Robert S. Summers May 1991

Judge Richard Posner's Jurisprudence, Robert S. Summers

Michigan Law Review

A Review of The Problems of Jurisprudence by Richard A. Posner


The Substance Of Equality, Jeremy Waldron May 1991

The Substance Of Equality, Jeremy Waldron

Michigan Law Review

A Review of Speaking of Equality: An Analysis of the Rhetorical Force of "Equality" in Moral and Legal Discourse by Peter Westen


Inessentially Speaking (Is There Politics After Postmodernism?), Allan C. Hutchinson May 1991

Inessentially Speaking (Is There Politics After Postmodernism?), Allan C. Hutchinson

Michigan Law Review

A Review of Making All the Difference by Martha Minow


Gender Justice Without Foundations, Marion Smiley May 1991

Gender Justice Without Foundations, Marion Smiley

Michigan Law Review

A Review of Feminism/Postmodernism edited by Linda J. Nicholson and Justice and the Politics of Difference by Iris Marion Young


From Blackstone To Bentham: Common Law Versus Legislation In Eighteenth-Century Britain, James Oldham May 1991

From Blackstone To Bentham: Common Law Versus Legislation In Eighteenth-Century Britain, James Oldham

Michigan Law Review

A Review of The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain by David Lieberman


Should The Law Reflect The World?: Lessons For Legal Theory From Quantum Mechanics, R. George Wright Apr 1991

Should The Law Reflect The World?: Lessons For Legal Theory From Quantum Mechanics, R. George Wright

Florida State University Law Review

No abstract provided.


Structure, Relationship, Ideology, Or, How Would We Know A "New Public Law" If We Saw It?, Peter M. Shane Feb 1991

Structure, Relationship, Ideology, Or, How Would We Know A "New Public Law" If We Saw It?, Peter M. Shane

Michigan Law Review

Academic writings and judicial opinions are the research materials most accessible to legal academics. It is thus unsurprising that, when asked to discuss "New Public Law," professors of administrative law, constitutional law, and legislation focus chiefly on emerging scholarship and judicial output. This tendency illustrates the general and quite understandable phenomenon that people, including law professors, do most whatever they can do most readily.

Nevertheless, however elegantly and provocatively we analyze each other's work and the labor of judges, discerning whether a new public law exists ought to involve a broader inquiry. In this essay I explore the complexity ...


Review Essay: Sunstein, Statutes, And The Common Law--Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss Feb 1991

Review Essay: Sunstein, Statutes, And The Common Law--Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Michigan Law Review

The following pages principally address Professor Sunstein's basic argument for building on, rather than defending against, legislative judgments, and so virtually ignore the details of his proposals for statutory interpretation. Part I outlines Sunstein's case for some regulation - the necessary failures of market ordering and the consequent need for a mixed economy in which government regulation intervenes in important ways. Part II addresses Sunstein's decision to tie his analysis to the public law innovations of the New Deal, and suggests ways in which the analysis might be strengthened by attention to earlier struggles and changes - changes in ...


The Concept Of Law And The New Public Law Scholarship, Edward L. Rubin Feb 1991

The Concept Of Law And The New Public Law Scholarship, Edward L. Rubin

Michigan Law Review

This article is an attempt to identify the nature of an emerging field of legal scholarship known as "New Public Law." "New," of course, is a dangerous term. Our society's image of itself as forward looking and its tendency to market itself to itself through claims of novelty has spawned a range of phrases from the New Deal to the New Criticism to various new, improved laundry detergents. One does not hear very many positive comments about the "old" these days. The argument that old ways of doing things are better has become an emblem of mistaken thought, and ...


In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey Feb 1991

In The Shadow Of The Legislature: The Common Law In The Age Of The New Public Law, Daniel A. Farber, Philip P. Frickey

Michigan Law Review

In this essay, we explore how modem common law judges should view their role vis-a-vis the legislature. We suggest that the perspective of the "New Public Law," as we conceptualize it, is surprisingly helpful in considering this problem.

In Part I, we briefly summarize two important aspects of the New Public Law: republicanism and public choice. We then address an obvious objection to our project - that our topic relates to private law, and is therefore outside the purview of the New Public Law. Part II turns to important questions about the relationship between statutes and the common law: When should ...


The New Public Law Movement: Moderation As A Postmodern Cultural Form, William N. Eskridge Jr., Gary Peller Feb 1991

The New Public Law Movement: Moderation As A Postmodern Cultural Form, William N. Eskridge Jr., Gary Peller

Michigan Law Review

The past twenty years have witnessed an explosion of public law scholarship, as legal scholars reconceptualized themes of administrative law, legislation, and constitutional law; created almost from scratch whole new areas of public law scholarship, including discrimination, environmental, and consumer protection theory; and enlivened discourse with concepts drawn from microeconomics, public choice theory, civic republicanism, practical philosophy, and hermeneutics. This intellectually intense activity has suggested the possibility that public law discourse has entered a "critical stage" and stimulated the Michigan Law Review to hold a conference in October 1990 on whether there is something that might be called "New Public ...


The Unintended Cultural Consequences Of Public Policy: A Comment On The Symposium, Richard H. Pildes Feb 1991

The Unintended Cultural Consequences Of Public Policy: A Comment On The Symposium, Richard H. Pildes

Michigan Law Review

In this essay, I want to try to build on it in order to suggest forms a genuinely New Public Law scholarship might take. My aim is to embrace much of what New Public Law thought has urged: the marginality of common law doctrine or judicial decisionmaking; the need to attend to profound disaffections with the modem regulatory state; an acceptance of the complex, dynamic relationship of public policy and private understandings; a recognition that public values are constituted not only at the grandest levels of policy formation, but also in the myriad microscopic day-to-day experiences of policy. In my ...


"The Nation As An Economic Unit:" Keynes, Roosevelt, And The Managerial Ideal, Richard Adelstein Jan 1991

"The Nation As An Economic Unit:" Keynes, Roosevelt, And The Managerial Ideal, Richard Adelstein

Division II Faculty Publications

The First New Deal as central economic planning, and the lost opportunity to reconstruct the federal government toward peaceful Keynesianism.


Deciding For Bigness, Richard Adelstein Jan 1991

Deciding For Bigness, Richard Adelstein

Division II Faculty Publications

Antitrust as a constitutional constraint on the growth of firms.


Revitalizing Public Interest Lawyering In The 1990'S: The Story Of One Effort To Address The Problem Of Homelessness (With Rebecca Arbogast Et Al.), Ronald C. Slye, Rebecca Arbogast, Roger L. Barnett, Leslie Kim Treiger Jan 1991

Revitalizing Public Interest Lawyering In The 1990'S: The Story Of One Effort To Address The Problem Of Homelessness (With Rebecca Arbogast Et Al.), Ronald C. Slye, Rebecca Arbogast, Roger L. Barnett, Leslie Kim Treiger

Faculty Scholarship Series

Despite annual exhortations to graduating law students to accept
the responsibilities as well as the benefits of entering the legal
profession, the prognosis for public interest law in the 1990's is uncertain.
There have been significant decreases in federal and private
funding of public interest organizations, sweeping changes in the
composition of the federal judiciary, and a decline in the matriculation
of public interest lawyers due to the increasing salary gap between
the private and public sector. Together these factors raise serious
questions about the future effectiveness of the traditional model
of the full-time public interest litigator and call ...


Rights, Communities, And Tradition, Brian Slattery Jan 1991

Rights, Communities, And Tradition, Brian Slattery

Articles & Book Chapters

This paper argues that there is a close connection between basic human rights and communal bonds. It criticizes the philosophical views of Alan Gewirth and Alasdair MacIntyre, which in differing ways deny this connection.


Comparative Constitutional Fundamentals, Richard Kay Jan 1991

Comparative Constitutional Fundamentals, Richard Kay

Faculty Articles and Papers

No abstract provided.


Public Interest Organizations, J. Jacobson Jan 1991

Public Interest Organizations, J. Jacobson

California Regulatory Law Reporter

No abstract provided.


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 ...


Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman Jan 1991

Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman

Articles

In this article, I propose two changes in the way hearsay issues are usually resolved. First, in some circumstances courts should divide the burdens of producing the declarant-for example, by imposing the physical burden on the proponent and the financial burden on the opponent. Second, no matter how the declarant is produced as a witness, she should ordinarily testify as part of the proponent's case, subject to cross-examination by the opponent. If the declarant does become a witness, the admissibility of her out-of-court statement should not be resolved until her current testimony about the underlying events is received.


Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining Jan 1991

Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining

Articles

he connection between authority and responsibility is such that the one cannot be thought of without the other. In legal method, close reading and rereading of a text marks it as an authoritative text; the presupposition of mind which is necessary to close reading is presupposition of a responsible mind. In the working of institutions that embody authority, the disposition to follow the decisions and statements of a person responsible for a matter inevitably rests upon a presupposition that the decisions and statements followed are those of the responsible person. As that presupposition fades with bureaucratization of decision and writing ...


Revitalizing Public Interest Lawyering In The 1990'S: The Story Of One Effort To Address The Problem Of Homelessness, Ronald Slye, Rebecca Arbogast, Roger L. Barnett, Leslie Kim Treiger Jan 1991

Revitalizing Public Interest Lawyering In The 1990'S: The Story Of One Effort To Address The Problem Of Homelessness, Ronald Slye, Rebecca Arbogast, Roger L. Barnett, Leslie Kim Treiger

Faculty Scholarship

Despite annual exhortations to graduating law students to accept the responsibilities as well as the benefits of entering the legal profession, the prognosis for public interest law in the 1990's is uncertain. There have been significant decreases in federal and private funding of public interest organizations, sweeping changes in the composition of the federal judiciary, and a decline in the matriculation of public interest lawyers due to the increasing salary gap between the private and public sector. Together these factors raise serious questions about the future effectiveness of the traditional model of the full-time public interest litigator and call ...


Bright Lines, George D. Brown Jan 1991

Bright Lines, George D. Brown

Boston College Law School Faculty Papers

No abstract provided.


"The Nation As An Economic Unit:" Keynes, Roosevelt, And The Managerial Ideal, Richard Adelstein Dec 1990

"The Nation As An Economic Unit:" Keynes, Roosevelt, And The Managerial Ideal, Richard Adelstein

Richard Adelstein

The First New Deal as central economic planning, and the lost opportunity to reconstruct the federal government toward peaceful Keynesianism.


Bright Lines, George D. Brown Dec 1990

Bright Lines, George D. Brown

George D. Brown

No abstract provided.


Deciding For Bigness, Richard Adelstein Dec 1990

Deciding For Bigness, Richard Adelstein

Richard Adelstein

Antitrust as a constitutional constraint on the growth of firms.