AuthorTitleCitationSummaryYearKey Terms in Title or Summary
Michael L. Seigel PRAGMATISM APPLIED: IMAGINING A SOLUTION TO THE PROBLEM OF COURT CONGESTION 22 Hofstra Law Review 567 (Spring 1994) Somehow the unfortunate trend has arisen among attorneys to make almost every case a BIG CASE. There is a tendency to want to present the evidence not once, but many times over, and to adduce needlessly cumulative evidence not only on the controverted issues but also on those which are all but uncontested. Advocates tend to confuse quantity of... 1994  
William N. Eskridge, Jr. PUBLIC LAW FROM THE BOTTOM UP 97 West Virginia Law Review 141 (Fall, 1994) I. INTRODUCTION: LAW FROM THE BOTTOM UP A. Law Comes from the Bottom Up, Not from the Top Down B. Positive Law is Not Neutral and Involves Struggle Among Competing Visions C. Official Choice of Law Does Not Necessarily Settle Matters II. DOCTRINAL ILLUSTRATIONS OF LAW FROM THE BOTTOM UP A. Statutory Interpretation (Job Discrimination) B.... 1994  
Roy L. Brooks RACE AS AN UNDER-INCLUSIVE AND OVER-INCLUSIVE CONCEPT 1 African-American Law and Policy Report 9 (Fall 1994) Race is an important concept in civil rights law. It is important in a technical sense, because it helps to define the scope of many civil rights statutes and triggers the highest level of judicial scrutiny of legislative acts under the Equal Protection Clause of the Constitution. For African Americans, race (or rather the prohibition of... 1994  
Wendy Brown-Scott RACE CONSCIOUSNESS IN HIGHER EDUCATION: DOES "SOUND EDUCATIONAL POLICY" SUPPORT THE CONTINUED EXISTENCE OF HISTORICALLY BLACK COLLEGES? 43 Emory Law Journal 1 (Winter, 1994) C1-3TABLE OF CONTENTS I. Introduction. 3 II. The Need for Historically Black Public Colleges and Universities: Building Trust Through Education. 10 A. The Need for Historically Black Colleges. 10 B. What Went Wrong?. 13 C. Rectifying Pluralistic Ignorance. 20 1. A Short Story. 20 2. A Longer Version. 26 III. Challenging Subordination, Gaining... 1994  
Steven H. Shiffrin RACIST SPEECH, OUTSIDER JURISPRUDENCE, AND THE MEANING OF AMERICA 80 Cornell Law Review 43 (November 1, 1994) Almost thirty years ago, Harry Kalven, Jr., one of the leading legal scholars of the twentieth century, wrote a book in which he attempted to analyze the impact of changing race relations and the civil rights movement on first amendment law. In the book he observed that African Americans did not often resort to the courts to combat racist speech.... 1994  
Tona Trollinger RECONCEPTUALIZING THE FREE SPEECH CLAUSE: FROM A REFUSE OF DUALISM TO THE REASON OF HOLISM 3 George Mason Independent Law Review 137 (Winter 1994) Introduction. 139 I. The Refuse of Traditional Free Speech Theory. 143 A. Marketplace Ideology. 143 B. The Marketplace of Ideas Model: Confusion and Doubt. 147 1. Origin and Evolution. 149 2. Confusion: Existential Fallacy. 154 3. Doubt: A Faith Tested In--And Worn By--Time. 159 II. The Competition Fallacy. 167 A. Imbalance: Omitting the Feminist... 1994  
Jane B. Baron RESISTANCE TO STORIES 67 Southern California Law Review 255 (January, 1994) It seems that the response to new movements in jurisprudence grows ever swifter. Current interest in legal storytelling is an example. Even as some scholars ask us to hear the call of stories, to read articles in story form, and to embrace various forms of narrative jurisprudence other scholars are at pains to point up the limitations of the... 1994  
Phoebe A. Haddon RETHINKING THE JURY 3 William & Mary Bill of Rights Journal 29 (Summer, 1994) In the ideal world perhaps we'd like most decisions to be made by juries. The civil jury has often been cast as the quintessential democratic institution, but its practical value in promoting justice has also been questioned. A metaphor for citizen participation in legal decision-making, the modern civil jury enjoys a visible but often... 1994  
Richard Delgado RODRIGO'S NINTH CHRONICLE: RACE, LEGAL INSTRUMENTALISM, AND THE RULE OF LAW 143 University of Pennsylvania Law Review 379 (December, 1994) I was sitting dejectedly in the airport waiting lounge, cursing myself for having taken a winter flight that changed planes in a northern city, when I heard a familiar voice from behind me. Professor, is it you? I turned. Rodrigo, for goodness sake! What are you doing here? A foreign-educated LL.M. student at the famous university across town,... 1994  
Richard Delgado RODRIGO'S SEVENTH CHRONICLE: RACE, DEMOCRACY, AND THE STATE 41 UCLA Law Review 721 (February, 1994) The familiar voice in my receiver gave me quite a start: Professor, it's me, Rodrigo Crenshaw. I'm at the corner grocery store just down the block from your building. I had been getting a number of calls from former students wanting to know if I would serve as a reference for the bar examiners or an employer. Sorry it took me a minute to... 1994  
Martha Chamallas STRUCTURALIST AND CULTURAL DOMINATION THEORIES MEET TITLE VII: SOME CONTEMPORARY INFLUENCES 92 Michigan Law Review 2370 (August, 1994) I often have trouble predicting how Title VII cases will come out. Like so many fields of law, Title VII law is dynamic, unsettled, and hotly contested. Particularly because the advance sheets seem to contain at least two divergent lines of cases -- conservative and progressive -- it is useful to speak in the plural when describing the visions of... 1994  
Maxwell O. Chibundu STRUCTURE AND STRUCTURALISM IN THE INTERPRETATION OF STATUTES 62 University of Cincinnati Law Review 1439 (Spring, 1994) I. Introduction and Overview. 1440 II. Construction and Deconstruction in the Interpretive Method. 1448 A. Interpretation as the Construction of Legislative Intent. 1450 1. Textualism. 1454 2. Legislative History. 1459 3. Structure. 1463 B. Interpretation as Construction: The Middle View. 1467 1. The Legal Process School. 1469 2. Dynamic... 1994  
Daniel A. Farber , Suzanna Sherry THE 200,000 CARDS OF DIMITRI YURASOV: FURTHER REFLECTIONS ON SCHOLARSHIP AND TRUTH 46 Stanford Law Review 647 (February, 1994) Last April, Professors Daniel Farber and Suzanna Sherry published a critique in these pages of the legal storytelling movement. Their legal position has been the subject of several responses, including an essay by Professor William Eskridge in this issue. In reply, Professors Farber and Sherry challenge their critics' reliance on postmodern views... 1994  
Richard Thompson Ford THE BOUNDARIES OF RACE: POLITICAL GEOGRAPHY IN LEGAL ANALYSIS 107 Harvard Law Review 1841 (June, 1994) C1-3TABLE OF CONTENTS INTRODUCTION. 1844 I. CONCEPTIONS AND CONSEQUENCES OF SPACE. 1847 A. The Construction of Racially Identified Space. 1847 B. The Perpetuation of Racially Identified Spaces: An Economic/Structural Analysis. 1849 1. Trouble in Paradise: An Economic Model. 1849 2. Strangers in Paradise: A Complicated Model. 1853 3. Strangers in a... 1994  
Wendy Brown-Scott THE COMMUNITARIAN STATE: LAWLESSNESS OR LAW REFORM FOR AFRICAN-AMERICANS? 107 Harvard Law Review 1209 (April, 1994) Two premises guide my exploration of a communitarian image of the state. First, the state has frequently acted in a lawless fashion toward African-Americans. The state has done so by failing, through both the abusive exercise of its power and the withholding of its laws, to protect people of African descent, beginning with slavery and continuing... 1994  
Yxta Maya Murray THE CULTURAL IMPLICATIONS OF JUDICIAL SELECTION 79 Cornell Law Review 374 (January, 1994) Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social, Reality. Toni Morrison, ed. New York: Pantheon Books. 1992. 475 pp. $15.00. The Constitution allows the President to nominate . by and with the Advice and Consent of the Senate . Judges of the supreme Court. Traditionally, the same types... 1994  
Anthony E. Cook THE DEATH OF GOD IN AMERICAN PRAGMATISM AND REALISM: RESURRECTING THE VALUE OF LOVE IN CONTEMPORARY JURISPRUDENCE 82 Georgetown Law Journal 1431 (April, 1994) In an article entitled Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr., I argued for a revitalization of an explicitly normative discourse about the common good. I contended that critical thought, abstracted from a vision of a reconstructed world and its progressive realization through social struggle, is... 1994  
Aviva O. Wertheimer THE FIRST AMENDMENT DISTINCTION BETWEEN CONDUCT AND CONTENT: A CONCEPTUAL FRAMEWORK FOR UNDERSTANDING FIGHTING WORDS JURISPRUDENCE 63 Fordham Law Review 793 (December, 1994) A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. No fundamental right is more glorified in American society than the right to freedom of speech. We Americans believe that the right to express our ideas... 1994  
Daniel A. Farber THE OUTMODED DEBATE OVER AFFIRMATIVE ACTION 82 California Law Review 893 (July 1, 1994) The academic debate over affirmative action has become a bitter stalemate. Opponents consider affirmative action to be reverse discrimination, charging that racial discrimination is equally wrong regardless of the race of the victim. Supporters retort that the relationship between African Americans and whites is hardly symmetrical, and that racial... 1994  
Darryl K. Brown THE ROLE OF RACE IN JURY IMPARTIALITY AND VENUE TRANSFERS 53 Maryland Law Review 107 (1994) In 1990, Washington, D.C., Mayor Marion Barry was indicted on fourteen charges of drug possession and perjury arising from a federal investigation that yielded a videotape of Barry smoking crack cocaine in Washington's Vista Hotel. Barry and his attorney chose not to seek a change of venue for the trial, despite overwhelming pretrial publicity... 1994  
Ian F. Haney Lopez THE SOCIAL CONSTRUCTION OF RACE: SOME OBSERVATIONS ON ILLUSION, FABRICATION, AND CHOICE 29 Harvard Civil Rights-Civil Liberties Law Review 1 (Winter, 1994) Under the jurisprudence of slavery as it stood in 1806, one's status followed the maternal line. A person born to a slave woman was a slave, and a person born to a free woman was free. In that year, three generations of enslaved women sued for freedom in Virginia on the ground that they descended from a free maternal ancestor. Yet, on the... 1994  
Spencer A. Overton THE THREAT DIVERSITY POSES TO AFRICAN AMERICANS: A BLACK NATIONALIST CRITIQUE OF OUTSIDER IDEOLOGY 37 Howard Law Journal 465 (Spring, 1994) As I look back over my short life, I recognize my successes and failures in both integrated and homogeneous environments. At an integrated suburban school during my adolescent years, I was an excluded, stereotyped loner who never realized his potential. In an effort to supplement missed social experiences, my parents insisted I attend an urban,... 1994  
Arthur Austin THE TOP TEN POLITICALLY CORRECT LAW REVIEWS 1994 Utah Law Review 1319 (1994) We live in an age obsessed with lists and rankings. It's kind of a parlor game . . . .' (V)oodoo social science. Political Correctness (PC) has infiltrated legal education. Feminist politics, race consciousness, and white male trashing are as familiar as civil procedure. A growing number of law faculty compete with colleagues from other... 1994  
Robin West THE WORD ON TRIAL 35 William and Mary Law Review 1101 (Spring, 1994) Milner Ball's extraordinary book, The Word and the Law, begins with a narrative account of seven practices in law. The seven practitioners Ball brings to life for the reader share two powerful traits: they all, in quite different ways, use law to lessen the multiple sufferings of various communities of poor people, and they all, by doing so,... 1994  
Louise G. Trubek U.S. LEGAL EDUCATION AND LEGAL SERVICES FOR THE INDIGENT: A HISTORICAL AND PERSONAL PERSPECTIVE 5 Maryland Journal of Contemporary Legal Issues 381 (1994) Over the past thirty years, law schools in the United States have become a major partner in the delivery of legal services to the poor. The importance of law schools in the system of delivering civil legal services to the poor continues, but the nature and scope of this role has changed over time, and is likely to continue to change. As Jeremy... 1994  
Philip N. Meyer WILL YOU PLEASE BE QUIET, PLEASE? LAWYERS LISTENING TO THE CALL OF STORIES 18 Vermont Law Review 567 (Spring, 1994) There is a saying: You never know what you find when you scratch the surface of an idea. The articles in this symposium scratch the surface of a simple idea: our legal culture is a storytelling culture. Practitioners and appellate judges are storytellers, and legal academics are increasingly sensitive to storytelling forms and aesthetics. Some... 1994  
Erika George WORDS AS STICKS AND STONES: NAMING THE HARM OF RACIST SPEECH 11 Harvard BlackLetter Law Journal 221 (Spring, 1994) In the pre-dawn hours of a summer morning in 1990, an African American family woke to find a crudely constructed cross burning in their front lawn. Robert A. Viktora, a juvenile at the time of the incident, had assembled the cross and set it ablaze inside the yard of the African American family who had recently moved into the neighborhood. Viktora... 1994  
Margaret M. Russell "A NEW SCHOLARLY SONG": RACE, STORYTELLING, AND THE LAW 33 Santa Clara Law Review 1057 (1993) Faces at the Bottom of the Well: The Permanence of Racism by Professor Derrick Bell and The Alchemy of Race and Rights by Professor Patricia J. Williams are two unique outstanding recent books with quite a bit in common. Each is a collection of thematically intertwined essays about the pervasiveness of racism and lingering legacies of slavery in... 1993  
Barbara J. Flagg "WAS BLIND, BUT NOW I SEE": WHITE RACE CONSCIOUSNESS AND THE REQUIREMENT OF DISCRIMINATORY INTENT 91 Michigan Law Review 953 (March, 1993) Advocating race consciousness is unthinkable for most white liberals. We define our position on the continuum of racism by the degree of our commitment to colorblindness; the more certain we are that race is never relevant to any assessment of an individual's abilities or achievements, the more certain we are that we have overcome racism as we... 1993  
Reviewed by Nadine Taub A NEW VIEW OF PORNOGRAPHY, SPEECH, AND EQUALITY OR ONLY WORDS? 46 Rutgers Law Review 595 (Fall, 1993) In her most recent book, Only Words, Catharine MacKinnon argues that it is both wrong and unnecessary for the First Amendment to protect pornography. As other reviewers have observed, Only Words is yet another effort to establish that the courts erred in invalidating an ordinance, originally conceived and drafted by Catharine MacKinnon and Andrea... 1993  
Robert E. Scott CHAOS THEORY AND THE JUSTICE PARADOX 35 William and Mary Law Review 329 (Fall, 1993) [T]he laws have mistakes, and you can't go writing up a law for everything that you can imagine. When you reach an equilibrium in biology you're dead. As we approach the Twenty-First Century, the signs of social disarray are everywhere. Social critics observe the breakdown of core structuresthe nuclear family, schools, neighborhoods, and... 1993  
Mary Becker CONSERVATIVE FREE SPEECH AND THE UNEASY CASE FOR JUDICIAL REVIEW 64 University of Colorado Law Review 975 (1993) The case for binding judicial review in a democracy is tenuous. Why should a small elite group of lawyers, who are not politically accountable, be able to block legislation desired by a majority of the citizens in a democracy? The relegation of important questions of high principle to the judiciary tends to degrade democratic deliberations by... 1993  
D. Marvin Jones DARKNESS MADE VISIBLE: LAW, METAPHOR, AND THE RACIAL SELF 82 Georgetown Law Journal 437 (December, 1993) Then it dawned upon me with a certain suddenness that I was different from the others; or like, mayhap, in heart and life and longing, but shut out from their world by a vast veil. . . . The shades of the prison-house closed round us all: walls strait and stubborn to the whitest, but relentlessly narrow, tall and unscalable to sons of night who... 1993  
Jerry Frug DECENTERING DECENTRALIZATION 60 University of Chicago Law Review 253 (Spring, 1993) The fear of making the national government the predominant power in the country is as old as America. But in the late twentieth century many people think that there is no alternative. Genuine decentralization of power, the traditional argument runs, is no longer possible. The world is too complex, local resources too inadequate, local power too... 1993  
  DISCUSSION 45 Stanford Law Review 1671 (July, 1993) Tom Grey (Moderator): First I am going to give each [of] the panelists a chance to say a little bit about anybody else's [papers]. And then I want to throw it open. Although the session is formally over soon, we are free to go on for awhile, and we will because I think this is an interesting group. Richard Epstein: I always find it somewhat... 1993  
Henry J. Richardson III GULF CRISIS AND AFRICAN-AMERICAN INTERESTS UNDER INTERNATIONAL LAW 87 American Journal of International Law 42 (January, 1993) It has now been two years since the end of the United Nations Security Council's military enforcement action against Iraq, popularly known as Operation Desert Storm. The glow of military success suffused the American atmosphere, and its aftermath is clearly shaping international expectations about the United Nations, its legal authority, human... 1993  
Anthony V. Alfieri IMPOVERISHED PRACTICES 81 Georgetown Law Journal 2567 (August, 1993) Bertie Johnson sat in the waiting room all morning. She held a cane upright in her right hand and a white plastic bag in her left hand clasped against her lap. When I opened the main office door and called out her name, she looked up and answered in a loud, hoarse voice. She then propped her left hand against the seat of the chair next to her,... 1993  
Gary Minda JURISPRUDENCE AT CENTURY'S END 43 Journal of Legal Education 27 (March, 1993) It used to be that jurisprudence was a relatively secure and stable specialized course of study in the legal academy. As taught at most law schools in the 1960s and 1970s, it was organized around a number of themes that attempted to explain law and judicial decision-making in terms of a generalized theory largely distinct from political and moral... 1993  
William H. Clune LAW AND PUBLIC POLICY: MAP OF AN AREA 2 Southern California Interdisciplinary Law Journal 1 (Spring, 1993) This article is an essay about the meaning of law and public policy and the complicated relationship between these two ideas. There is hardly a term more common in government than policy-public policy, policy analysis, and so forth. Especially since the advent of legal realism, legal discourse relies extensively upon policy arguments,... 1993  
Jane C. Murphy LAWYERING FOR SOCIAL CHANGE: THE POWER OF THE NARRATIVE IN DOMESTIC VIOLENCE LAW REFORM 21 Hofstra Law Review 1243 (Summer 1993) Legal storytelling is an engine built to hurl rocks over walls of social complacency that obscure the view out from the citadel. . . . The messages say, let us knock down the walls, and use the blocks to pave a road we can all walk together. L1-2Introduction 1244 I. The Relationship Between Law and Social Change . 1247 II. Telling Stories:... 1993  
Robert W. Gordon LAWYERS, SCHOLARS, AND THE "MIDDLE GROUND" 91 Michigan Law Review 2075 (August, 1993) One of the many virtues of Judge Harry Edwards' very interesting polemic is that it issues an open invitation to say what one likes about present legal scholarship, without having to document it too carefully; and it provokes one to more than perfunctory reflection about what to say. Judge Edwards has three complaints. (1) He and his clerks have... 1993  
Richard A. Epstein LEGAL EDUCATION AND THE POLITICS OF EXCLUSION 45 Stanford Law Review 1607 (July, 1993) In economic affairs the social advantages of competition are least apparent to disappointed competitors. Domestic firms call for protection against low price imports: Let there be tariffs and import quotas. Skilled workers lobby for protection against low wage rivals: Let there be minimum wage laws, maximum hours laws, and collective bargaining.... 1993  
Richard A. Posner LEGAL SCHOLARSHIP TODAY 45 Stanford Law Review 1647 (July, 1993) Notwithstanding its fads and philistinisms, its wobbly standards and general laxity, its pockets of incompetence and nepotism, its cult of political correctness and virus of affirmative action, the American university is without peer in the world. Peerless, but not uniformly progressive. Many fields of university scholarship, particularly but not... 1993  
Nancy E. Dowd LIBERTY vs. EQUALITY: IN DEFENSE OF PRIVILEGED WHITE MALES 34 William and Mary Law Review 429 (Winter, 1993) This book is disturbing in more ways than I can count. Grounded in libertarianism and law-and-economics, its thesis is that the principles of choice and freedom of association outweigh equality and justice, justifying the abolition of private employment discrimination law and the imposition of severe limitations on public employment discrimination... 1993  
Kate Nace Day LOST INNOCENCE AND THE MORAL FOUNDATION OF LAW 1 American University Journal of Gender & the Law 165 (Spring, 1993) And I walk on in there and smash a myth. Gloria Anzaldua Once upon a time, on the day before the first day that truly mattered, there was a garden filled with innocence. Within that garden and its innocence, there were first beings, beings of color and sex. When these first beings met, they recognized each other as human and recognized within... 1993  
Andre Sole OFFICIAL ENGLISH: A SOCRATIC DIALOGUE/LAW AND ECONOMICS ANALYSIS 45 Florida Law Review 803 (December 1, 1993) I. Introduction. 803 II. Carlos Meets the State Legislator. 805 III. Carlos Reveals His Problem and Motivation. 806 IV. The Legislator Explains the Law and Economics of Language, Gives the English-Only View, and Discusses Possible Benefits of English-Only Legislation. 808 V. Carlos Gives the Countervailing View of Multilingualism as Richness,... 1993  
Richard Delgado ON TELLING STORIES IN SCHOOL: A REPLY TO FARBER AND SHERRY 46 Vanderbilt Law Review 665 (April, 1993) I. Introduction. 665 II. Errors and Misstatements. 667 A. Thematic Errors and Misconceptions. 668 1. Equation of Outsider Jurisprudence With Narrative Scholarship. 668 2. Narrative Scholarship and the Different Voices' Debate. 669 3. Stories Are Useless Without Analysis and Reasoned Argument. 669 4. Overlooking the Desconstructionalist Tale, or... 1993  
Wayne Eastman ORGANIZATION LIFE AND CRITICAL LEGAL THOUGHT: A PSYCHOPOLITICAL INQUIRY AND ARGUMENT 19 New York University Review of Law and Social Change 721 (1992/1993) Introduction A Note on Rhetoric I. Firm Life What It Was Like to Work in a Law Firm II. Critical Legal Thinking What Do You Want? III. The Connection Between the Legal Oppositionist Critique of Law and Liberalism and a Critique of Organization Life A. Affirmative Implications of the Indeterminacy Critique 1. Rhetorical Change 2. Reducing the Domain... 1993  
Paul Brest PLUS CA CHANGE 91 Michigan Law Review 1945 (August, 1993) Harry Edwards and I both finished law school in 1965, and his article presents an occasion to consider how much the legal academy has changed during the intervening years. Animating Judge Edwards' complaints about the contemporary legal academy is a nostalgia for happier days. His images are of decline - of a growing disjunction between the academy... 1993  
  PROCEEDINGS OF THE FIFTY-THIRDJUDICIAL CONFERENCEOF THEDISTRICT OF COLUMBIA CIRCUIT 145 Federal Rules Decisions 149 (March, 1993) C1-5Thursday, June 11, 1992 R5Page L1-4,T1Welcome by Abner J. Mikva, Circuit Chief Judge .. 151 L1-4,T1Tribute to Honorable Aubrey E. Robinson, Jr., former Chief Judge, U.S. District Court for the District of Columbia Circuit by Chief Justice William H. Rehnquist .. 152 L1-4,T1Remarks by Abner J. Mikva, Circuit Chief Judge .. 156 L1-4,T1Remarks by... 1993  
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