Showing papers in "Notre Dame Law Review in 2003"

Decision-Making in Mediation: The New Old Grid and the New New Grid System

Abstract: This Article reviews the author's previous mediator-orientation models and proposes a new system for understanding the range of mediator orientations based on substantive, procedural, and meta-procedural decision-making grids.

Poverty and Property in Kant's System of Rights

Abstract: The civil union marks the transition to public right from the property regime of the state of nature Immanuel Kant’s theory of property rights necessitates not only this transition but also — as part of it — the people’s duty to the poor Although Kant’s notion of property completely conforms to corrective justice, it generates the distributive justice that consists in the alleviation of poverty through taxation Kant’s inclusion of the public duty to support the poor among the effects of the civil condition suggests that the agreement of all would be impossible unless the state assumed this duty This chapter views that the relief of poverty is not as something from which the state might contingendy benefit, but as a duty of the people that the state assumes, like all duties Kant describes, this duty presumably reflects a normative necessity rather than a prudential option

The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence

Abstract: The standard of proof beyond a reasonable doubt is commonly thought to be an important benefit to the accused. The history of the standard is much more complex and demonstrates lesser commitments to the truth and to the defendant. This article develops the history of the reasonable doubt instruction in the United States and its English antecedents. Examining the development of the instruction in the seventeenth and eighteenth centuries and its evolution through the nineteenth and twentieth, this history reveals the dual nature of the instruction. It both encapsulated a theory of knowledge and articulated a level of confidence in the evidence. Further, the history describes twentieth-century changes in the meaning of the legal standard, particularly the divorce of the jury instruction from a broader theory of knowledge and the failure of the legal language to reflect changing definitions of reason in public discourse. The most significant of these changes in the jury instruction is to define reasonableness as the assignment of reasons. The result of these changes has been both to lower standards of criminal proof and to diminish the autonomy of the juror as the finder of fact. This outcome is the opposite of that believed by the majority of the Supreme Court that made proof beyond a reasonable doubt a constitutional requirement in In re Winship. In particular, these changes in the standard may have altered the operation of the presumption of innocence, so that the defense now has the burden of proving the reasons for innocence. This result has all but escaped scholarly notice, although it is felt keenly by some judges, and it is worthy of both further study and reform.

Separation of Powers and the Horizontal Force of Precedent

Abstract: The power of the courts and Congress to regulate precedential force has been the subject of recent judicial and scholarly foment. Most provocatively, Professor Michael Stokes Paulsen has argued that the Constitution's silence on this subject leaves room for Congress to strip targeted Supreme Court opinions of any precedential force. Other scholars and some judges have argued that stare decisis enjoys constitutional status, which limits the power of either Congress or the courts to destroy precedential force. This article contends, contra Paulsen, that stare decisis has constitutional import but that his conclusion that Congress can eliminate the horizontal force of precedent is nonetheless at least partially correct. The key to reconciling these inconsistent-sounding propositions is to recognize and harmonize two competing separation-of-powers principles: (1) the rule of law forbids officials from seizing more power than the law grants them; and (2) Congress, the lawmaker, has considerable discretion to delegate discretionary power to the executive and judicial branches. The first of these principles suggests the conclusion that courts cannot constitutionally eliminate their obligation, deeply rooted in common law, to show measured (though not absolute) deference to their own precedents. The second, however, suggests that Congress possesses power to release the courts from this constraint. In short, separation of powers permits Congress to grant a power that the courts may not legally seize.

Slouching toward Discretion

Abstract: Against this general background it turns to several recent "hot spots" of procedural controversy and assesses them in terms of the degree of discretionary activity. Although this examination confirms the views of the critics that discretionary activity has indeed increased, I view these developments with less alarm than some others. For one thing, there have been legal reactions ― by appellate courts, Congress, and the rulemakers ― that respond to the concerns raised by certain kinds of procedural discretion. I conclude that, even if the current activity holds risks, it is not clear that these risks have been realized often, or that any alternative measures to deal with the forces that stimulated these changes are likely to present themselves. Indeed, it is noteworthy that increased judicial supervision of litigation ― the feature of recent American development that sparks most controversy among academics ― appears to be an international phenomenon, and not just an American one.

The Class Action Rule

Abstract: The class action is a compromise: It removes class members' right to participate in their own lawsuits, but it benefits society by holding defendants accountable for the dispersed harm they create. This compromise is captured by the idea that the named plaintiff's role is to represent the interests of the absent class members rather than to be their agent. Because the architecture of Rule 23 - the federal procedural rule that governs class actions - is inconsistent with the nature of the class action as a compromise based on interest representation, the rule should be altered dramatically. We would eliminate the core categorization scheme of 23(b) and apply limited notice, intervention, and opt-out rights to all class actions.

The Illusory Protections of the Poison Pill

Abstract: This paper describes the operation of the standard preferred stock rights plan with a flip-in feature. Rather than a static look at the initial dilution of a bidder's investment when the flip-in rights become exercisable, we examine a dynamic model, where the bidder then proceeds to acquire the remaining shares of the target corporation in a hostile acquisition. We find surprisingly modest levels of dilution from the standard rights plan, amounting to less than 10% of the total value of the target. This modest dilution is primarily a function of the fact that rights provide a one-time dilution when a bidder's investment in the target is relatively modest - no more than 15% of its stock in most cases. While rights plans can destroy part of this value, they generally do not destroy it all. We explore the reasons for the limits of such plans, and the reasons why no one has deliberately swallowed a pill.

Passion and Nation: War, Crime, and Guilt in the Individual and the Collective

Abstract: Riffing off of George Fletcher's theory of Romanticism and war, the article reviews Fletcher's arguments, which received derisive reviews during the War against Iraq in 2003. The article takes Fletcher's approach seriously in considering the problem of war as a Romantic impulse, and the difficulties caused by that understanding. The article then derives arguments on the limits of the laws of war to apply to military actions against terrorism. The article considers the nature of collective guilt as a mitigating element in the crimes of one individual, and it considers the nature of non-state enemies in war. This last point is illustrated through detailed contrast between the U.S. experiences in the Barbary Wars and the Punitive Expedition to Mexico.

Politicizing the Crime against Humanity: The French Example

Abstract: The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice. This Essay presents one side, the dark side, of the history of the crime against humanity. It discusses the undermining and subversion of legal concepts resulting from their politicization, as they become subject to juridical argument, legal procedure, and judicial decisionmaking. So much has been written to promote the adoption of universal legal standards and urge adherence to international tribunals that I do not undertake an overview of the crime against humanity in today's legal order that reflects those reasons and advantages, or that balances one side against the other. Rather, I undertake to highlight the role that politics and ideology inevitably play in law. That role is visible when one examines some aspects of the modern legal trajectory of the crime against humanity. It suggests the need for vigilance in safeguarding concepts and values ever subject to subversion as ideologies drift under the frozen surface of legal texts, of the immutable language that cloaks a mutable law, enabling the mutations to occur invisibly, and to escape examination.

Zelman's Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles

Abstract: This piece focuses on the Supreme Court's recent decision in Zelman v. Simmons-Harris, the Cleveland school voucher case, and the constitutional questions that have already begun to appear in its aftermath. After describing the constitutional crossroads at which the Zelman Court found itself, we offer a close reading of the Zelman opinions, paying special attention to the normative vision of church-state relations that each presupposes, the values that the Court failed to explore, and practical questions about the range of school settings to which Zelman might ultimately be applied. The piece then explores the legal and constitutional future of the voucher movement, with respect to education as well as other social services. This section first focuses on knotty questions of state constitutional law, and the interplay of those questions with federal constitutional norms, that have arisen in Zelman's wake. The piece then turns to the debate about regulatory conditions that might be imposed upon providers in voucher programs. Viewing the problem in light of the Supreme Court's tangled jurisprudence of unconstitutional conditions and religious accommodation, we explore conditions related to school performance, student admissions, faculty hiring, and controversial expression by providers. Finally, we analyze the importance of Zelman outside the field of education, by probing the decision's implications for the President's Faith-Based Initiative - that is, for efforts by government to enlist faith-based organizations in providing a variety of social services.

The Waning Importance of Revisions to U.C.C. Article 2

Abstract: Article 2 of the Uniform Commercial Code governs contracts for the sale of goods. This article seeks to show that, however urgent the need to modernize Article 2 was in 1990, this need ironically has waned with the passage of time. Article 2 requires less change now than it did a decade ago to meet the requirements of modern commerce. The article supports this claim by looking at three very significant developments that have occurred since 1990: the growth of electronic commerce, the decision not to address software licenses in article 2, and the accumulation of a decade of precedents addressing uncertain issues.