Showing papers in "California Law Review in 1991"

Reneging on History?: Playing the Court/Congress/President Civil Rights Game

Abstract: Brenda Patterson is a woman of color. She worked for McLean Credit Union as a fie clerk and teller from 1972 until she was fired in 1982. Brenda Patterson sued McLean for racial discrimination based on its conduct towards her while she was an employee. She testified at trial that her employer and its supervisors gave her more demeaning work than similarly situated white employees, passed over her for promotions given less qualified white employees and did not even inform her of promotion opportunities, denied wage increases routinely given other employees, and subjected her to gratuitous racial slurs, such as the opinion that \"blacks are known to work slower than whites by nature.\"1 Section 1981 of title 42 provides that all persons \"shall have the same right.., to make and enforce contracts.., as is enjoyed by white citizens.\"' 2 Brenda Patterson's claim asserted that the racial harassment she experienced while a McLean Credit Union employee violated her right \"to make and enforce contracts,\" in this case, her employment contract. The district court refused to submit her claim to the jury on the ground that racial harassment relating to conditions of employment is not actionable under section 1981. On June 15, 1989, the United States Supreme Court, by a five-to-four vote, agreed with that interpretation. The Court in Patterson v. McLean Credit Union 3 reasoned, in part, that

Hearing the Call of Stories

Abstract: In this Article, Professor Abrams examines the emergence offeminist narrative scholarship as a distinctive form of critical legal discourse. Arguing that the failure to debate publicly the conventions and merits of this form has perpetuated misunderstandings about its claims and disadvantaged its practitioners, she begins by examining several of the critiques that have been offered, in nonpublic settings, offeminist narratives. To provide background and context for examining these critiques, she then analyzes four recent examples offeminist narrative legal scholarship. In the final section of the Article, Professor Abrams returns to the opening critiques. She argues that their grounding in the methodological assumptions of objectivity does not render these critiques unusable, but requires that they be restated in terms more consistent with the methodological and epistemological assumptions of narrative. After discussing possible ways of refraining these objections, Professor Abrams explains how proponents of narrative scholarship might respond to them, highlighting not only the conventions of narrative scholarship but also emergent criteria for evaluating the efforts of its practitioners. At the center of Jeanette Winterson's novel The Passion I is a visionary storyteller. Patrick is an Irish parish priest who possesses a unique

Race and the Core Curriculum in Legal Education

Abstract: I. Legal Education and the Canon Debate ................... 1513 A. Introduction: The Thesis ............................. 1513 B. The Legal Core Curriculum .......................... 1515 1. Its Backwardness ................................. 1515 2. Its Advantages ................................... 1519 II. Race in a Law School Classroom: Case Study .............. 1521 A. Property Class and Gratuitous Transfers Class ........ 1521 1. Roots of Title in the New World .................. 1521 2. Slavery ........................................... 1523 B. Discrimination Class ................................. 1526 1. Background ...................................... 1526 2. The First Class ................................... 1528 3. Course Structure .................................. 1537 4. Race and the Constitution ........................ 1539 C. The Underground Classroom ......................... 1554 III. Race in the Law School Classroom and in the Legal Canon: The Thesis Revisited ...................................... 1572 A. The Classroom ....................................... 1572 1. On Indoctrination ................................ 1572 2. On Doing the Right Thing ........................ 1583 B. The Canon ........................................... 1586 C. Conclusion ........................................... 1593

Three Civil Rights Fallacies

Abstract: From the early 1950s until the present day, three propositions have permeated the arguments of lawyers and others interested in advancing the cause of civil rights. The first proposition is that the target of the civil rights movement is discrimination, which is always or usually a product of irrational hatred, fear, or prejudice. In this view, the purpose of civil rights law is to eliminate these forms of irrationality from the public and private realms. The second proposition is that the principal function of civil rights law is compensatory. Just as an injured person in a tort action has a right to be made whole, so victims of a history of discrimination (including slavery) are entitled to be put into the place they would have occupied if discrimination had never occurred. Restoration of the status quo ante is a substantial part of the reasoning and rhetoric of civil rights law. The third proposition is that the judiciary is the appropriate institution for the making and enforcement of civil rights law. Reliance on the courts, principally through interpretation of the Constitution, has been a distinctive feature of the civil rights movement since the middle of this century. In this essay, I argue that these three propositions, which are mutually reinforcing, are fallacies. They misconceive the nature of discrimination and offer prescriptions that are ill-adapted to its elimination. This was so even in the period in which they arose and helped to accomplish considerable good. But their fallacious character will be especially conspicuous in the last decade of the twentieth and the early decades of the twenty-first century. In this period, the consequences of the fallacies will probably be pernicious. I do not mean at all to deny that prejudice still plays a major role in many realms of social and economic life, that the history of discrimina-

Can a pregnant woman morally refuse fetal surgery

Abstract: Fetal surgery techniques may soon improve so that the benefits to the fetus will outweigh the risks to the pregnant woman. Under such a scenario, utilitarianism-which seeks the greatest overall societal benefitwould require surgical intervention to treat the fetus, even if the woman refused the surgery. This Comment argues, however, that deontology provides the better decisionmaking framework for the fetal surgery context. Since deontology, as embodied in the informed consent doctrine, applies in all other medical decisionmaking contexts, there must be a compelling reason to change the framework for fetal surgery. One reason that might be offered is the apparent conflict between the woman's right to refuse surgery for herself and her duty to permit the fetus to be treated. The author proceeds to resolve that conflict in favor of the pregnant woman's right to refuse the fetal surgery, and accordingly she concludes that nojustification remains for abandoning deontology in the fetal surgery context.

A Libertarian Critique of University Restrictions of Offensive Speech

Abstract: This Comment examines the constitutionality and desirability of university restrictions of offensive speech. The Comment first looks at the turmoil that has prompted campuses to seek ways to maintain a level of civility which will protect students from offense. The Comment then analyzes current theories of protecting speech and, with a few modifications, advocates the use of the skepticism embodied in the metaphor of a marketplace of ideas as a basis for judging both the constitutionality and the desirability of campus speech regulations. The reliance on marketplace skepticism is justified by the relative risk of ceding power to determine truth to the government rather than allowing each individual to make such determinations. The Comment then examines three analytical structures adopted by universities in an effort to maintain civility in speech on campus: regulations designed to prevent violence, regulations designed to prevent offense, and regulations designed to protect the objects of derisive speech from being "stigmatized" by the derision. The Comment concludes that only regulations designed to prevent violence are both permissible under the Constitution and good policy for universities to pursue.

Rejecting Unreasonable Sexual Expectations: Limits on Using a Rape Victim's Sexual History to Show the Defendant's Mistaken Belief in Consent

Abstract: Throughout history, our culture has made assumptions about people based on certain physical characteristics. Gender is one example, and the law of rape is one of the clearest illustrations. Rape laws assume that men act a certain way while women act quite differently. For example, evidence of a rape victim's past consensual sexual practices was long considered relevant. After reformers questioned the assumptions behind this use of evidence, many jurisdictions enacted rape shield laws which bar such evidence when offered to show that a rape victim consented. The purposes behind these rape shield laws, however, may be thwarted by the mistake of fact defense. This defense exonerates an attacker who reasonably believed that the victim consented to sex even if she did not, in fact, consent. A rape defendant may offer evidence that he knew the victim was 'promiscuous\" and then may argue that this led him mistakenly to believe that she consented. This Comment argues that evidence of a woman's sexual practices should be excluded in this situation. Believing that a woman consents to sex based on a mere perception of 'promiscuity\" is patently unreasonable. Reasonable behavior in a sexual context requires communication between partners, rather than reliance on stereotypes. The author explores the role of gender socialization in creating stereotypical views of male and female sexuality and argues that these harmful stereotypes should not be furthered by the justice system.

Free Exercise on the Mountaintop

Abstract: In this dialogue on a mountaintop, a student and his spiritual teacher explore the contours of the free exercise clause of the first amendment. The Supreme Court dramatically narrowed that clause in Employment Division v. Smith, which concerned the religious use of peyote by Native Americans. The teacher and the student examine aspects of the decision, including the importance of the unemployment compensation context of the case and the fate of the "compelling governmental interest" test. The teacher concludes by the end of the discussion that the Smith Court mistreated precedent, used shoddy reasoning, and, except in the unemployment compensation area, deprived the free exercise clause of any independent significance.

The Income Tax as Insurance: The Casualty Loss and Medical Expense Deductions and the Exclusion of Medical Insurance Premiums

Abstract: Whether personal income tax deductions are appropriate refinements to the concept of income or are unwarranted tax expenditures continues to be the subject of debate. The casualty loss and medical expense deductions are frequently justified on the ground that largely unavoidable losses or expenditures reduce one's ability to pay taxes. This Article reconsiders the question, taking into account the availability of private insurance, which is widespread for relevant losses in both areas. The author argues that when individuals can insure, the second level of insurance implicit in the casualty loss and medical expense deductions has undesirable effects on consumption choices and insurance decisions. In particular, individuals may be more exposed to losses because of tax deductions commonly believed to mitigate them. He concludes that, given the option, individuals would prefer a regime that eliminated the deductions and offered correspondingly lower tax rates.

Freedom of Expression and the Civic Republican Revival in Constitutioal Theory: The Ominous Implications

Abstract: A modified form of civic republicanism has seen a recent revival in constitutional theory. The authors critique this \"liberal\" version of republicanism, specifically, its implications for free expression. Though scholarship on the intersection of republicanism and free expression is sparse, the authors extrapolate from the \"communitarian determinative\" model and the \"external objective\" model of republicanism and apply them to free speech. They argue that even those branches of modern republican theory that privilege communitarian self-determination over externally derived truths present extremely disturbing implications for the viability of free speech theory in many of its traditional applications.

Campus Anti-Slur Regulations: Speakers, Victims, and the First Amendment

Abstract: In response to an alarming increase in violence and harassment on campuses, state universities have enacted regulations seeking to limit speech that disparages community members on the basis of such personal characteristics as race, religion, gender, and sexual orientation. This Comment considers the social significance of group-based epithets in particular, arguing that their connection to past and present mistreatment makes them especially harmful both to targeted victims and society in general The author argues that the marketplace of ideas is unable to provide a remedy through more speech to the assaultive and intimidating effects of group-based epithets upon targeted hearers. Drawing upon the captive audience doctrine, he proposes that state universities may enforce a personal civility zone protecting people in public forums from personally directed, harassing speech. The bounds of this civility zone are defined by speech that the speaker actually knows or should know will peculiarly upset and harass the hearer. The author then proposes a model regulation and applies it to some difficult factual situations.

The due process of dying.

Abstract: This essay criticizes the way law has involved itself in medical decisionmaking at the end of life. The argument is that the positivism of the law in this area, and particularly the law's affinity for concepts of rights and autonomy, makes for a poor fit with the underlying structures of medical decisionmaking. These are not scientific structures but rather moral and philosophical ones; and the reason the rules of law conflict with the process of medical decisionmaking is less that medicine has an opposing set of black-letter rules of its own than because healing, which is at the heart of medicine, proceeds through a web of shared responsibilities and through subtle submissions and acceptances ofpower outside the recognition of law. Additionally, medicine has one commitment that does run counter to the legal commitment to autonomy: the preservation of choice and of possibility. In overriding autonomy and forcing upon patients those choices that preserve choice, doctors must become \"ad hoc paternalists. \" To the extent that this prospect is distressing or frightening, the essay offers comfort, though it may be comfort of a peculiar sort: the wielders of paternalistic powers are themselves subject to uncertainty, and always answerable to those who challenge their assertions of responsibility, or challenge the particular choices they have made. The paternalists do not have all the answers (though they are temporarily invested with the responsibility for confronting the questions), and they may always be held accountable for the answers they produce. Tracing the course of doctors and patients as they made decisions in the face of uncertainty and inevitable death, this essay advises lawyers and judges to eschew the certainty of positive law. Rather, judges should acknowledge and accede to the unfamiliar structure of the healing arts, using judicial power creatively, and only to work out the terms of reconciliation between doctors and patients.

When Congress Overrules the Court

Abstract: On October 22, 1990, President Bush announced that he would veto the Civil Rights Act of 1990. The announcement met with expected criticism from congressional sponsors of the bill as well as from spokespersons for the civil rights community. While these critics stressed the importance of the legislation for the civil rights movement, the amendments represent another, equally important, legal dimension: a developing institutional conflict between Congress and the Supreme Court. Congress' initiative in passing the Civil Rights Act did not occur in isolation. Rather, it is but one of several recent attempts by Congress to undo what it deems to be objectionable rulings of the Supreme Court. These efforts by Congress to overrule the Court may reveal important tensions in the constitutional relationship between these coordinate branches. Our intention, here, is to understand these recent struggles between Congress and the Court and place them in historical context, relying upon similar struggles that occurred at the dawn of the New Deal. There are, of course, many instances in which Congress has overruled decisions of the Court, most of which have innocent, constitutionally unexceptional, explanations. One of the authors served as a law clerk to Justice Minton, when his decision in a contracts case, Wunderlich v. United States, 1 was overturned by Congress with record-breaking speed. But, as the New Deal era has shown, not all the deeds of the Court and Congress can be innocently explained. There have, for example, been periods of political upheaval or turmoil in which the Court's erroneous interpretations appear to reflect deliberate attempts to frustrate the policy objectives of Congress. Under these circumstances, the dialectic between the

Discounts and Other Mysteries of Corporate Finance

Abstract: Introduction ................................................... 1055 I. Dividends and Discounts .................................. 1062 A. The Irrelevance Proposition .......................... 1063 B. Standard Responses to the Irrelevance Proposition ..... 1064 1. The Bird-in-the-Hand Theory ..................... 1065 2. The Clientele Effect ............................... 1065 3. The Signaling Hypothesis ......................... 1066 C. The Downward-Sloping Demand Hypothesis .......... 1070 1. Why Internal Capital Is Cheaper .................. 1071 2. Why Investors Often Prefer Dividends ............. 1073 II. Disparate Valuation ....................................... 1077 A. The Value of Control ................................ 1079 B. The Value of Diversification .......................... 1081 III. Other Evidence of Downward-Sloping Demand ............ 1087 A. Share Repurchases ................................... 1087 B. Initial Public Offerings ................................ 1091 C. Tender Offers ........................................ 1095 D. Market Mechanisms .................. ................ 1097 1. Limit Orders ..................................... 1097 2. Shareholder Vote Requirement for Certain Large Issues ............................................ 1098 E. Company-Specific Phenomena ......................... 1099 1. Increase Accompanying Listing on the Standard & Poors 500 ........................................ 1099 2. Differing Sensitivities to Market Risk of Larger and Smaller Companies ............................... 1100 F. Marketwide Phenomena .............................. 1102 IV. The Implications of Downward-Sloping Demand ........... 1103 A. Implications for Tender Offer Regulation .............. 1104 1. The Law Should Treat Large and Small Companies Differently ........................................ 1104 2. The Misguided Quest for Equal Treatment of Shareholders ...................................... 1106

Back to the Future and up to the Sky: Legal Implications of Open Skies Inspection for Arms Control

Abstract: The United States, the Soviet Union, and their respective allies are currently engaged in the negotiation of a new arms control agreement on \"Open Skies,\" reviving a failed concept from the 1950s. The treaty would permit each country to overfly the others on short notice and with great frequency, and to use diverse, sophisticated sensors to photograph key military and defense-related installations. This type of mutual intelligencegathering arrangement offers great advantages for national security and global stability, reducing the possibility of surprise attack and accordingly mitigating the necessity for maintaining large, offsetting military deployments. At the same time, however, the intrusive inspection powers it contemplates might also conflict with the fourth amendment's prohibitions against warrantless governmental searches conducted inside the United States. In this Article, the author scrutinizes the Open Skies provisions now on the negotiating table and assesses them for constitutionality, applying precedents and principles derived from traditional criminal law. He concludes that an Open Skies treaty could be implemented consistently with fundamental United States jurisprudence, but only with certain limitations, and that the current negotiations finalizing the treaty text ought to take carefully into account the concerns of future reviewing courts.

Valuing Student Speech: The Work of the Schools as Conceptual Development

Abstract: Introduction ................................................... 1271 I. A View from the Court: The Work of the Schools as the Inculcation of Values ..................................... 1276 A. Judicial Acknowledgment of Student Speech Rights ... 1277 B. The Court's Retreat from Protecting Student Speech... 1280 II. A View from Educational Research: The Work of the Schools as Conceptual Development ....................... 1292 A. The Conceptual-Development Model of Learning: Principles from Cognitive Research ....................... 1293 1. Students' Existing Knowledge and Cognitive Structures Are Major Influences on Learning ........... 1294 2. Cognitive Structures Are Learner, Not School, Functions ........................................ 1296 3. Expression Is Vital for Conceptual Development... 1299 B. Conceptual Development Is the Schools' Acknowledged M ission .............................................. 1301 1. Bloom's Taxonomy ................................ 1301 2. State Curriculum Guides .......................... 1304 C. Falling Short of Their Cognitive Ideals: Why Schools May Prefer the Inculcative Model over Conceptual Development ......................................... 1308 D. Conceptual Development Promotes Democratic Education ........................................... 1312 III. Implications of the Work of the Schools as Conceptual Development: Expansive Student Freedom of Expression ... 1315 A. Freedom of Expression Is Necessary for Students' Conceptual Development: The Cognitive Classroom ... 1316 1. The Value of Freedom of Expression in Schools ... 1316 2. The Conceptual Development Classroom .......... 1318 B. Student Speech That Diverges from the Prescribed Curriculum Interferes Little with the Work of the Schools .............................................. 1323

Recasting the American Race Problem

Abstract: In Rethinking the American Race Problem, Roy L. Brooks addresses what many consider America's most intractable problem: race.x In this well-researched volume, Brooks sets out to accomplish three tasks: to demonstrate the extent and seriousness of the American race problem (pp. 25-128), explain why it fails to galvanize the American people and their government (pp. 6-9), and offer some suggestions on what ought to be done (pp. 131-72). He is notably successful in the first undertaking, less so with the other two-better at showing the stark realities of the race problem than at showing why these realities persist or what should be done about them. Despite my reservations about the interpretive side of Brooks' book, I believe it makes a significant contribution to our understanding of the race problem. Part I of this review sets out Brooks' thesis. Part II deals with its interpretive deficiencies, showing how certain insights associated with the Critical Race Theory school of jurisprudence could have given Brooks' treatment even more depth and explanatory power.

From Capone to Boesky: Tax Evasion, Insider Trading, and Problems of Proof

Abstract: The efficacy of using the criminal law to discourage commercial and financial activity such as securities fraud and tax evasion has been questioned. The author agrees that such use of the criminal law should be scrutinized. However, she asserts that in concentrating on the theories underlying this use of the criminal law, commentators for the most part have ignored practical problems that arise in enforcing such laws. Studying tax-evasion and insider-trading prosecutions, she finds that courts have allowed and affirmed convictions based upon less than the constitutionally required evidence. A close reading of opinions indicates that this judicial leniency is due in part to the courts' perception that the prosecution put on as good a case as it could and in part to the courts' belief that the defendant was a wrongdoer. Although such a judicial response is understandable, this use of context without proper reference to principle subverts constitutional protections and leads to arbitrary decisions. The author concludes that courts should refuse to affirm diligent but constitutionally flawed prosecutions and thereby force legislatures to be more creative in remedying perceived ills. The Article ends on a cautionary note, examining recent legislative criminalizations of commercial behavior, determining that similar problems of proof will arise in these areas, and urging that courts not adopt the unconstitutional burden-shifting devices that they have resorted to in tax-evasion and insider-trading cases.

Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State

Abstract: Corporations'first amendment rights have received considerable judicial and scholarly attention in recent years. However, corporate speech cannot be studied adequately in isolation; rather, it is more fruitfully investigated within the broader context of collective speech. The author accordingly presents a theoretical framework for dealing with communications by different types of collectivities. The main distinction is between two paradigm collective entities: organizations and communities. Although it makes sense to ascribe speech to both, the grounds for extending constitutional protection are fundamentally different. Whereas communal speech has in and of itself expressive value that raises the first amendment's primary concerns, organizational speech does not. Instead, the latter has only derivative constitutional value, and its protection is parasitic upon other protected interests that the organizations' communications may promote. Moreover, organizational communications themselves are not unitary in nature. The author develops a typology of organizations that distinguishes the reasons for and the desirable extent of protecting their respective communications. Finally the author considers \"government speech, \" demonstrating how the classification of collectivities and their speech rights applies to communications by various state institutions and helps to differentiate the constitutional status of these communications.

The Confidentiality of Criminal Conversations on TDD Relay Systems

Abstract: The Americans with Disabilities Act (ADA) provides for a nationwide network to allow users of Telecommunications Devices for the Deaf (TDDs) to communicate with users of voice telephones. Operators will relay calls between TDD and voice telephone users under a statutory requirement that the operator may not reveal the contents of \"any\" call. This Comment examines the balance between the rights of deaf individuals and the enforcement of criminal law, searching for the proper scope of ADA protection in the statutory language, legislative history, background communication law, and public policy. Each of these sources of statutory interpretation urges that complete confidentiality is necessary to place hearingand speech-impaired Americans on an equal footing with their fellow citizens. The author argues that relay conversations should be protected by a user-operator privilege and by exclusionary rules preventing the revelation of relay conversations and their fruit in criminal proceedings. Broad privacy protection maximizes the usefulness of the system by allowing relay users to communicate freely and does not impede law enforcement. The author concludes that the mandate of functionally equivalent telecommunications for all can be satisfied only by giving the ADA confidentiality provision its greatest effect.