Showing papers in "Michigan Law Review in 1994"

Incommensurability and Valuation in Law

Abstract: In this article I explore two claims and discuss their implications for law. The first claim is that human values are plural and diverse. By this I mean that we value things, events, and relationships in ways that are not reducible to some larger and more encompassing value. The second claim is that human goods are not commensurable. By this I mean that such goods are not assessed along a single metric. For reasons to be explored, the two claims, though related, are importantly different.

Psychological Barriers to Litigation Settlement: An Experimental Approach

Abstract: ** Research Fellow, SCCN. B.A. 1989, Stanford; Ed.M. 1991, Harvard; J.D. 1994, Stanford. Ed. Research support for this project was provided by a generous grant from the SCCN. The authors thank Robert Mnookin, Janet Cooper Alexander, Ian Ayres, and Tom Lyon for their advice and comments on earlier drafts, the participants in the Harvard Law School Negotiation and Conflict Resolution Interdisciplinary Research Seminar for their comprehensive and incisive written and oral critiques, and especially Lee Ross for his consultation on social science laboratory research methodology. 1. One seminal empirical study, now over 20 years old, found that only 4.2% of automobile liability claims filed against insurance companies ultimately reach trial. See H. LAURENCE Ross, SETTLED OUT OF COURT: THE SOCIAL PROCESS OF INSURANCE CLAIMS ADJUSTMENTS 217 (1970). A more recent study found that approximately 8% of civil suits filed in state and federal courts went to trial, and another 22.5% of those cases were disposed of by judges, most through dismissal, summary judgment, or default judgment. See David M. Trubek et al., The Costs of Ordinary Litigation, 31 UCLA L. REV. 72, 89 (1983). More than 50% of the claims settled out of court prior to adjudication. Id. Criminal suits also settle in overwhelming numbers through plea bargaining. See JAMES E. BOND, PLEA BARGAINING AND GUILTY PLEAS ? 1.2 (2d ed. 1983). 2. Litigants incur both psychic and financial costs. According to Marc Galanter, who cites a number of empirical studies to support his argument, trials impose substantial emotional costs on both plaintiffs and defendants. See Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3, 8-11 (1986). "For plaintiffs and defendants alike, litigation proves a miserable, disruptive, painful experience. Few litigants have a good time or bask in the esteem of their fellows indeed, they may be stigmatized. Even those who prevail may find the process very costly." Id. at 9 (citations omitted). Plaintiffs and defendants also incur financial costs at trial. Trubek et al., supra note 1, at 90-93. Costs fall into two categories: out-of-pocket costs including legal fees, expert witness fees, and so on and the "monetary value of the time clients spend on cases." Id. at 91. Generally speaking, the more legal actions that take place, the higher the costs incurred that is, increased legal fees, client time away from work, and trial fees, such as expert witness fees, stenographic costs, and travel expenses. Id. at 104 (finding that "duration does not have a substantial effect on hours.... [T]he more motions filed and discovery conducted, the more hours spent."); see also RAND: THE INSTITUTE FOR CIVIL JUSTICE, COMPENSATION FOR ACCIDENTAL INJURIES IN THE U.S. 135-36 (1991) (finding that about one-fifth of personal injury plaintiffs "were told that the fee would depend on the length of time required to resolve the claim, the ultimate amount received, or whether or not a trial was required"). 3. J.S. Kakalik and R.L. Ross examined public spending on civil disputes during fiscal

The Historical Origins of the Privilege against Self-Incrimination at Common Law

Abstract: guaranty that no person "shall be compelled in any criminal case to be a witness against himself"1 - was a landmark event in the history of Anglo-American criminal procedure. Prior historical scholarship has located the origins of the common law privilege in the second half of the seventeenth century, as part of the aftermath of the constitutional struggles that resulted in the abolition of the courts of Star Chamber and High Commission. This essay explains that the true origins of the common law privilege are to be found not in the high politics of the English revolutions, but in the rise of adversary criminal procedure at the end of the eighteenth century. The privilege against self-incrimination at common law was the work of defense counsel. From the middle of the sixteenth century, when sources first allow us to glimpse the conduct of early modern criminal trials,2 until late in the eighteenth century, the fundamental safeguard for the defendant in common law criminal procedure was not the right to remain silent, but rather the opportunity to speak. The essential purpose of the criminal trial was to afford the accused an opportunity to reply in person to the charges against him. Among the attributes of the procedure that imported this character to the criminal trial, the most fundamental was the rule that forbade defense counsel. The prohibition upon defense counsel was relaxed in stages from 1696 until 1836, initially

A More Democratic Liberalism

Abstract: Rawls's project in Liberalism bears certain important similarities to Hegel's in his Philosophy of Right, and it will be instructive to sketch both the commonalities and the differences between their projects. In Theory, Rawls proposed "to generalize and carry to a higher order of abstraction the traditional theory of the social contract". The combination of social unity and moral pluralism captured in Liberalism's idea of overlapping consensus generalizes and carries to a higher order of abstraction the conventional idea of toleration. This chapter shows how claims about the objectionable dependence of the original position on a particular philosophy of life can be turned into the internal tension in justice as fairness — the problem in Theory's account of stability — that Liberalism aims to address. Theory presents an attractive ideal of a just society — a well-ordered, democratic society, featuring a consensus on norms of justice.

The Anatomy of Antiliberalism

Abstract: Preface Introduction: What is Antiliberalism? Part I. The Antiliberals Maistre and the Antiliberal Tradition Schmitt: The Debility of Liberalism Strauss: Truths for Philosophers Alone Maclntyre: The Antiliberal Catechism Anti-Prometheanism: The Case of Christopher Lasch Unger: Antiliberalism Unbound The Community Trap Part II. Misunderstanding the Liberal Past Antiliberals as Historians of Liberal Thought The "Atomization" of Society? Indifference toward the Common Good? The Eclipse of Authority? The Public Realm Sacrificed to the Private? EconomicMan? The Selfishness of Rights? Moral Skepticism? The Crimes of Reason? Antonym Substitution Conclusion Notes Index

Employment Discrimination Law in Perspective: Three Concepts of Equality

Abstract: Over the past fifty years, the body of law prohibiting discrimination in employment has grown enormously in terms of the extent of geographic coverage, the range of covered employers, the array of protected workers, and the spectrum of prohibited practices. Beginning in the mid-1940s, states began passing Fair Employment Practices laws that generally prohibited discrimination on the basis of race, color, religion, or national origin. Over the next two decades, the geographic reach of these laws spread as most states outside the South enacted some form of this legislation. With the passage of Title VII of the Civil Rights Act of 1964,1 the legal prohibition became national in scope and the categories of protected workers were extended to include women. In successive years, more employers came within the regulatory domain of Title VII as the required number of workers in a covered firm dropped from one hundred to fifteen,2 and in 1972 Congress extended the reach of the law to state and local government and educational institutions.3 Then, in the mid-1970s, the prohibition against racial discrimination was extended to all employers through the Supreme Court's decision in Runyon v. McCrary,4 which interpreted the century-old 42 U.S.C. ? 1981 as providing a remedy for racial discrimination that was independent of Title VII and therefore not bound by the latter's exemption of small employers.

Give Them Back Their Lives: Recognizing Client Narrative in Case Theory

Abstract: * Associate Professor of Law, The American University, Washington College of Law. B.A. 1978, Carleton; J.D. 1983, University of Chicago. Ed. I thank Robert Dinerstein, David Chavkin, Stephen Ellmann, and Nancy Polikoff for thoughtful responses to earlier drafts of this article, David Marin and Sara Shepard for helpful research assistance, and the participants in the Mid-Atlantic Clinical Theory and Practice Workshop and the New York Law School Clinical Theory Workshop for valuable comments. I am especially indebted to Miriam Ruttenberg for wide-ranging research support and astute feedback about the ideas in this article, Liz Seaton for incisive editing and farseeing conversations about the politics of sexual orientation and case theory, and my colleagues in the clinical program at The American University, Washington College of Law, whose insights about lawyering have shaped my work as a clinical teacher and scholar. I also thank my partner Ruth Eisenberg and my friend Michele Wolin for their generous personal support. Because all writing builds on lessons from the past, I dedicate this article to the memory of my mother, who loved unstintingly through pain and adversity, and who taught me the significance of perspective and the value of empathy. 1. See Symposium, Lawyers As Storytellers & Storytellers As Lawyers: An Interdisciplinary Symposium Exploring the Use of Storytelling in the Practice of Law, 18 VT. L. REV. 565 (1994); Symposium, Legal Storytelling, 87 MICH. L. REV. 2073 (1989); Symposium, Speeches from the Emperor's Old Prose: Reexamining the Language of Law, 77 CORNELL L. REV. 1233 (1992). 2. See, e.g., Clark D. Cunningham, A Tale of Two Clients: Thinking About Law as Language, 87 MICH. L. REV. 2459, 2463 (1989); Steven Lubet, The Trial as a Persuasive Story, 14 AM. J. TRIAL ADVOC. 77, 77 (1990); Sharon Creeden, Telling Your Client's Story to the Jury, TENN. B.J. May-June 1991, at 10, 10. 3. See, e.g., Charles R. Lawrence, III, The Word and the River: Pedagogy as Scholarship as Struggle, 65 S. CAL. L. REV. 2231, 2278 (1992); Kim Lane Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2073 (1989). The relationship between law, storytelling, and progressive lawyering is brilliantly portrayed by Gerald L6pez, perhaps the foremost proponent of this genre, in his path-breaking work Rebellious Lawyering. See GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1992). For a thoughtful analysis of L6pez's ideas, see Anthony V. Alfieri, Practicing Community, 107 HARV. L. REV. 1747 (1994) (book review). The idea of voice and narrative is also the focus of much academic literature from other disciplines, including literature, anthropology, political science, and history. See, e.g., JAMES MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA at ix-x (1988). For a critique of the legal narrative movement, see Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807, 840-54 (1993) (arguing that objective standards should be used to evaluate narratives and that much narrative scholarship falls short of these standards).

Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property

Abstract: idea for characterizing these more complicated packages of rights. Still, in the last analysis, the system of property in land is a set of rules about material resources and nothing more.76 Thus, Waldron would conclude that ultimately all the interests concerning my apartment building are concerned with \"material resources\" in his definition of physical things. He might try to argue that my ownership interest primarily concerns my sensuous exploitation of physical walls, floors, ceilings, fixtures, and so on. But the interests of the financial institutions, the telephone company, the cable TV company, the electric company, the postal service, the laundry company, and Sal the Super are not primarily related to the physical location. Rather, they are rights to receive income and are not, as Waldron suggests, substantially different from the rights to income from the exploitation of any other form of noncorporeal property. Mor~over, even my apartment's value to me is not primarily based on my physical needs. The value consists of a combination of its objective exchange value the market price and its subjective use value to me. The use value relates to a variety of Symbolic and Imaginary concerns, as well as my Real needs. Examples include the apartment's physical attractiveness, its relative quietness, its proximity to both my office and a wide variety of restaurants and entertainment, the artsy population of the neighborhood, and so on. Indeed, when one compares the cramped quarters in which we New Yorkers tend to live with the housing occupied by people of comparable economic resources in other parts of the country, it is obvious that we value our property despite its failure to meet our Real physical wants. Waldron admits that if ownership is defined in terms of wealth, then we will certainly have to conjure up incorporeal things to correspond to the complex legal relations that in fact define their economic position. But if we say instead that property is a matter of rules about access to and control of material resources, but not necessarily about private ownership, then we may still say that a man's wealth is constituted for the most part by his property relations. He may not be the owner of very many resources; but the shares he holds, the funds he has claims on, and the options and goodwill he has acquired, together define his position so far as access and control of material resources is concerned.77 Once again, Waldron distinguishes between relations concerning noncorporeals and \"property\" that is, access to material re76. WALDRON, supra note 50, at 36-37.

Title VII and the Complex Female Subject

Abstract: Sitting in Nedicks the women rally before they march discussing the problematic girls they hire to make them free. An almost white counterman passes a waiting brother to serve them first and the ladies neither notice nor reject the slighter pleasures of their slavery. But I who am bound by my mirror as well as my bed see causes in color as well as sex. and sit here wondering which me will survive all these liberations.

The Punishment of Hate: Toward a Normative Theory of Bias-Motivated Crimes

Abstract: This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large. The distinction between bias crimes and parallel crimes also concerns the perpetrator's state of mind and, specifically, his bias motivation toward his victim. Bias motivation is an essential element of criminal liability and the greater level of harm caused warrants their enhanced punishment. The punishment of an individual offender for the commission of a bias crime, however, is warranted by the state of mind with which he acts. Part I of this article discusses the differences between bias crimes and parallel crimes and explores the distinctiveness of perpetrators and victims of bias crimes along with the impact of bias crimes beyond that on the immediate victim. After establishing a typology of positive bias crime law, the author discusses the outward manifestations of these crimes. Part II demonstrates that bias crimes ought to be punished more severely than parallel crimes. Part III considers the aspects of bias crimes that are relevant in the punishment of an individual offender. Whereas the harm caused by bias crimes generally justifies the enhanced punishment of these crimes, the resulting harm to a particular victim does not, in and of itself, warrant the enhanced punishment of the perpetrator. Bias motivation of the perpetrator, and not necessarily the resulting harm to the victim, is the critical factor in determining an individual's guilt for a bias crime. The author concludes that the discriminatory selection model of bias crimes is an insufficient theory of bias crime, whereas the racial animus model offers a far richer theory. Discriminatory selection of a victim may often provide important evidence of racial animus, and in some instances even fully persuasive evidence. But selection ought to play the role of proof for animus and not the greater role of element for guilt.

When Is the Senate in Recess for Purposes of the Recess Appointments Clause

Abstract: governors who supported the suit,4 but the U.S. District Court for the District of Columbia granted an injunction preventing Bush from removing any of the governors.5 The President nonetheless continued to pursue his goal. He waited until a recess of the Senate6 to replace one of the governors who supported the suit, Crocker Nevin, with Thomas Ludlow Ashley,7 a longtime friend who Bush believed would oppose the suit.8 Bush thus skirted the usual procedure for presidential appointments, in which the Senate must confirm the President's nomi-

Rediscovering Hegel's Theory of Crime and Punishment

Abstract: This paper explores the possible contemporary significance of Hegel's theory of crime and punishment in the context of a review essay of Mark Tunick's 'Hegel's Political Philosophy: Interpreting the Practice of Legal Punishment' .

No Time for Trumpets: Title VII, Equality, and the Fin De Siecle

Abstract: changes in moral concepts are always embodied in real, particular events .... There ought not to be two histories, one of political and moral action and one of political and moral theorizing, because there were not two pasts, one populated only by actions, the other only by theories. Every action is the bearer and expression of more or less theory-laden beliefs and concepts; every piece of theorizing and every expression of belief is a political and moral action. ALASDAIR MAcINTYRE, AFTER VIRTUE 61 (2d ed. 1984). 25. Eric Foner dates this \"Radical Reconstruction\" period from 1867 when \"Radical Republicans\" in Congress \"swept aside Southern governments ... and fastened black suffrage upon the defeated South\" to 1877, the date of the Hayes-Tiiden Compromise when, in exchange for favorable resolution of a dispute over the presidency, the Republicans agreed to remove the Northern troops that had enforced civil rights Jaws. See ERIC FoNER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 1863-1867, at xix (1988). During Reconstruction a panoply of civil rights laws were passed, and blacks were elected to office and began numerous businesses. These black gains were largely swept away after 1877. Id. at 602. 26. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The Taney Court held, inter alia, that Dred Scott remained a slave despite his temporary sojourn in the \"free state\" of Illinois. 60 U.S. at 452-53. In Chief Justice Taney's view, Scott's claims relied on the notion that he could be a U.S. citizen capable of suing in U.S. courts. Taney asserted that the original intent of the Constitution was that neither slaves nor their descendants were \"citizens\" within the meaning of the Constitution. See 60 U.S. at 411-12. See generally DoN E. FEHRENBACHER, THE DRED SCOTT CASE (1978). 27. Taney framed the issue as follows: The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarant[e)ed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

Conditional Probative Value: Neoclassicism without Myth

Abstract: The concept of conditional relevance is an essential aspect of the classical model of evidentiary law. Some of the great scholars of evidence have endorsed and shaped it.' Under Federal Rule of Evidence 104(b) it plays a crucial role in the division of responsibility between judge and jury,2 as well as in the application of the personal knowledge3 and authentication4 requirements. And the Supreme Court has applied it with great force.5 In recent years, though, the concept has come under attack from several notable scholars. The late Vaughn Ball led the assault, calling the concept a "myth."6 Peter Tillers, finding Ball's analysis to have some merit7 but not to be entirely satisfying, concludes that "[a]s a device for the regulation of fact-finding chores by the jury," the doctrine of conditional relevance "seems particularly invidious since it is so susceptible of witting or unwitting manipulation by judges who are distrustful of juries."8 Dale Nance has found Ball's criticisms convincing as applied to the hypotheticals and cases by which conditional relevance is usually explained; what "residual

Black Identity and Child Placement: The Best Interests of Black and Biracial Children

Abstract: The purpose of this Note is to question whether racial matching by courts and child-placement agencies serves the best interests of Black children. The principle that guides this Note's analysis is that racial matching is justified only if such a policy better serves that interests of Black children than a policy in which race is not a factor in a child-placement determination. This Note also questions whether racial matching serves the interests of biracial children and those of Black people as a cultural group.This Note does not focus on the equal protection concerns raised by the use of race in child placement. This is not to suggest that the Constitution is not implicated or important. Rather, by concentrating on the interests of Black children, this Note recognizes that, unless and until Congress or the Supreme Court forbids the consideration of race in child placement, many courts and agencies will continue to view the issue only with reference to the best-interests standard.Part I of this Note examines caselaw regarding the permissible use of race in child custody and adoption proceedings and finds that many courts permit the consideration of race in placing a Black child. Part I further finds that courts and agencies view a biracial child as Black and, consequently, favor placing a biracial child with her Black parent after a custody dispute and with Black parents in the adoption context. Part II considers various ways in which the use of race in the placement process harms Black children. Part II concludes that, even assuming that transracial placement entails risks, the harms of racial matching – both in the adoption and custody context – counsel against race-conscious placement. Part III evaluates the assumptions underlying the NABSW's position against transracial placement. It first considers the interests of Black children generally and concludes that not only is there insufficient evidence that transracial placement harms Black children, but transracial placement may also carry its own benefits over inracial placement. Part III then focuses on biracial children and finds that additional reasons support the abandonment of Black-preferred placement for these children. Finally, Part III considers the interests of Black people as a group. Contrary to the position of NABSW, this Part argues that transracial placement does not threaten Black culture and may in fact contribute to Black culture's ability to survive and adapt.This Note concludes that, in light of the harm caused by racial matching and the benefits offered by transracial placement, the use of race in the child-placement process is not justified. Courts and agencies should instead limit child-placement determinations to nonracial criteria. Alternatively, if courts or agencies insist on considering race, the perceived risks involved in transracial placement, the costs of racial matching, and the benefits of transracial placement should inform their decisions.

Environmental TQM: Anatomy of a Pollution Control Program That Works!

Abstract: \"When law succeeds, it puts itself out of business.\" -That statement is not always true, of course. The term law is broad and imprecise. It certainly is true, however, for activist regulatory forms of law, such as environmental law. The purpose of law in the activist mode is to change the norms and behavior of a community or subcommunity. Complete success would eliminate the need for additional legal acts to reinforce the message and would undermine the law's continued reason for being. Conversely, the more obvious and intrusive legal machinery is at any given time or place, the less successful the law has been in achieving its ultimate goal of \"voluntary ' 2

Caste and the Civil Rights Laws: From Jim Crow to Same-Sex Marriages

Abstract: The battle over civil rights law has been waged on many different fronts at the same time. Historically, the emphasis has been on the manifest injustices that dominant groups have inflicted on other groups with less political power. Economically, the dispute has been over whether civil rights legislation will increase or reduce overall levels of production. Sociologically, the question has been whether civil rights legislation can overcome hierarchy and foster a sense of community among equals, or whether it increases levels of group consciousness, which in turn leads to issues of group separation. In most modern settings, this search for rationales has not stemmed from any doubt about the wisdom or even the necessity of civil rights laws. Quite the opposite, the desirability of these laws is usually taken for granted, and the inquiry then proceeds with the aim of finding the most powerful intellectual base on which these laws can rest. But the evident increase in racial and ethnic conflict and the massive attention to sex differences or gender relations even the terms used in the debate will say a lot about which side an advocate is on1 show that the old confidence about the desirability of these laws has been shaken by an ever-increasing awareness that things have not turned out quite the way the supporters of civil rights legislation had hoped. That sense of disappointment is evident in the disagreement over fundamental objectives. On the one hand, commentators commonly proclaim that the purpose of civil rights legislation is to make institutions and individuals ignore those differences of race

Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response

Abstract: A. Finite Resources and Limited Windows of Opportunity 21 B. Legislative History and Limited Windows of Opportunity 26 C. Congressional Self-Governance 32 D. Valuing Legislative Efficiency 37 III. THE PROBLEMS OF RELYING ON LEGISLATIVE SIGNALS ... .... .. ... ....... 40

The Michael Jackson Pill: Equality, Race, and Culture

Abstract: * Professor of Law, Duke University. B.A. 1972, University of Chicago; M.A. 1974, J.D. 1978, Harvard. Ed. Different versions of this essay were presented to the Critical Race Theory Summer Workshop at the University of Colorado in 1992 and the University of Wisconsin and Duke University Faculty Workshops in February and March, 1994. I would like to thank Angela Harris, Lisa Ikemoto, Beverly Moran, Linda Greene, Derrick Bell, John Calemore, Harlon Dalton, and Lani Guinier for their comments. I would also like to thank Paulette Caldwell and Patricia Williams for illuminating discussions and my research assistants Frank Cooper and Kevin Vilke for their help. All remaining errors and confusions are my own.