North Carolina law review最新文献

{"title":"Genetic disability: a modest proposal to modify the ADA to protect against some forms of genetic discrimination.","authors":"Jennifer Chorpening","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"82 4","pages":"1441-81"},"PeriodicalIF":0.0,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25821228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ABA, the Rules, and Professionalism: The Mechanics of Self-Defeat and a Call for a Return to the Ethical, Moral, and Practical Approach of the Canons","authors":"Benjamin H. Barton","doi":"10.2139/SSRN.530285","DOIUrl":"https://doi.org/10.2139/SSRN.530285","url":null,"abstract":"In this Article I argue that there was once a single animating goal for American legal ethics - providing moral, ethical, and practical guidance on practicing law. Throughout the 20th Century lawyer regulators worked to bisect that goal, and we now have two quite distinct, and frequently conflicting goals. On the one hand, bar regulators pushed ceaselessly to narrow the regulations governing lawyer conduct to black-letter minimum, and eliminated the broadly moral from the Rules. On the other hand, bar regulators sought to raise lawyers' ethical and moral standards through professionalism and other non-mandatory efforts. These bisected goals clash in several notable ways. First, separating the mandatory from the hortatory creates cynicism about both projects. Second, theorists have long argued that criminal prohibitions are most effective when they overlap with commonly held morality, because people tend to obey those laws regardless of enforcement. As lawyer regulators have eliminated the broadly moral from the Rules of Professional Conduct they have greatly decreased the odds of compliance, since lawyers will not feel ethically bound to obey, and lawyer regulations are notoriously under-enforced. Lastly, black-letter rules trigger a particular lawyer heuristic I call \"boundary seeking.\" Lawyers are trained to find the border between the legal and the illegal, and this heuristic replaces any broader ethical consideration. I suggest eliminating these inconsistencies by returning to the original, unitary goal of legal ethics, and redrafting a general statement of ethical, moral, and practical principles to govern the legal profession, i.e. we should return to the approach of the ABA's 1908 Canons of Professional Ethics.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"83 1","pages":"411"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67758618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Empiricism: Quasi-Neutral Principles and Constitutional Truths","authors":"Timothy J. Zick","doi":"10.2139/SSRN.466000","DOIUrl":"https://doi.org/10.2139/SSRN.466000","url":null,"abstract":"This Article describes and analyzes \"constitutional empiricism,\" a trend, instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific data, conventions, and processes. The Court has historically relied upon traditional sources, such as text, structure, and history, to interpret constitutional powers and rights. In the continuing search for neutrality and objectivity, however, the Court has recently turned not only to social science and other empirical data, which have become common sources of interpretation in constitutional cases, but also to the precepts and methods of scientific and empirical inquiry. Constitutional empiricism is a method of constitutional interpretation which seeks to imitate scientific inquiry. The Court purports, for example, to be able to distinguish, by reference to empirical observation, \"real\" from sham legislative predicates. It now routinely empirically tests these predicates as if they were legislative hypotheses, predictions, theories, and falsifiable causal claims. Beyond this empirical testing of legislative predicates, empiricism is also manifested in the Rehnquist Court's efforts to quantify constitutional norms found in provisions as disparate as the Due Process Clause, the Establishment Clause, and the Cruel and Unusual Punishments Clause, among others. Thus, for example, the constitutionality of punitive damages awards is determined by reference to newly announced due process ratios; the validity of vouchers depends in large part upon an \"Establishment Equation\"; and whether execution of the mentally retarded is \"cruel and unusual\" depends upon the \"direction of change\" observed in state legislative outputs. Drawing upon debates in the philosophy of science discipline, the Author argues that constitutional empiricism does not provide long-sought neutral methods and principles for constitutional interpretation. Empiricism is based upon a host of subjective choices that affect not only which questions will be answered empirically, but also the collection, categorization, and ultimate interpretation of data. Thus, the precepts of empiricism do not, as would appear, function as a set of \"neutral principles.\" In fact, the Author argues, far from propelling constitutional interpretation into the twenty-first century, empiricism has been utilized, thus far, to draw attention away from a return to the sort of formalism and conceptualism that characterized early eras of constitutional interpretation. More generally, the Author contends that empirical methods are ill-suited to the discovery of constitutional meaning. Because it filters evidence, fails to provide standards for separating \"good\" empirical results from \"bad\" results, and demands that hypotheses be legally \"correct,\" constitutional empiricism does not advance constitutional knowledge in the same manner that empirical methods advance scientific knowledge. Perhaps even more disturbing, h","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2003-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67741864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Decline of Judicial Decision Making: School Desegregation and District Court Judges","authors":"W. Parker","doi":"10.2139/SSRN.442001","DOIUrl":"https://doi.org/10.2139/SSRN.442001","url":null,"abstract":"This article examines all published or electronically available federal district court opinions concerning school desegregation from June 1, 1992, to June 1, 2002, and their disposition on appeal. Based on the resulting analysis, the article argues that the commonly held perception of the all-powerful district court judge is outdated. Instead of controlling the process and outcome of the school desegregation cases, district court judges have ceded to the parties, particularly the defendants, a great deal of control over both the process and outcome of the litigation. In doing so, the judges have allayed, to no small degree, many of the criticisms of their role in school desegregation. Yet the price of the deference to defendants has been denial to school desegregation plaintiffs the fulfillment of their rights, even under the admittedly pro-defendant standards of the Supreme Court. This Article identifies two Alabama district court judges who are exceptions to the pattern of deference to defendants. Unlike their colleagues, these judges have taken an active role in overseeing their school desegregation cases. Through their efforts, school desegregation suits are being dismissed, but only after thorough and relatively successful desegregation efforts.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"81 1","pages":"1623"},"PeriodicalIF":0.0,"publicationDate":"2003-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68788914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Testing Competing Theories of Justification","authors":"P. Robinson, J. Darley","doi":"10.2139/SSRN.136811","DOIUrl":"https://doi.org/10.2139/SSRN.136811","url":null,"abstract":"Present criminal law theory reflects a disagreement over the underlying theory of the justificatory principle, and thus the proper legal formulation of such defenses. At the core of the debate about the principle is the following question. Are justification defenses given because the actor's deed avoids a greater harm, or because she acted for the right reason? The deeds theory of justification justifies conduct that avoids a greater harm, because the conduct is conduct that we would be happy to tolerate under similar circumstances in the future: that is, because the actor has done the right deed. The reasons theory looks not at the deed but at the reason for the deed. The reasons theory gives a defense when a person acts for the right reason, generally trying to avoid a greater harm. The issue between the two theories concerns the focus of justification. Is the focus of justification the nature of the deed or the actor's reason for acting? The debate to date relies in large part upon legal and philosophical arguments. But frequently a third source of authority is brought into play. Each side buttresses its arguments with claims that its theory better tracks the community intuitions, a common claim in criminal law arguments. In this article Robinson and Darley test those claims about the community's intuitions, using experimental social science research techniques designed for such inquiries. They conclude, among other things, that lay intuitions are consistent with the deeds theory of justification and inconsistent with the reasons theory. The study also addresses a variety of other issues related to the operation of justification defenses. In a final section, the authors, discuss the implication of their findings for the formulation and grading of offenses, the formulation of defenses, and the reform of acquittal verdict forms.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"76 1","pages":"1095"},"PeriodicalIF":0.0,"publicationDate":"2003-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68170695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Patients' bill of rights: legislative cure-all or prescription for disaster?","authors":"Matthew J Binette","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"81 ","pages":"653-96"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25154887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sexual Ethics and Postmodernism in Gay Rights Philosophy","authors":"C. Ball","doi":"10.4324/9781315094021-16","DOIUrl":"https://doi.org/10.4324/9781315094021-16","url":null,"abstract":"","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"80 1","pages":"371"},"PeriodicalIF":0.0,"publicationDate":"2002-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70629674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Limited Influence of Social Science Evidence in Modern Desegregation Cases","authors":"J. Ryan","doi":"10.2139/SSRN.353702","DOIUrl":"https://doi.org/10.2139/SSRN.353702","url":null,"abstract":"In footnote eleven of the Brown opinion, the Supreme Court famously cited social science evidence in support of the proposition that segregated schools harmed African-American students. This footnote ignited a debate over both the quality of the research cited and the extent to which it influenced the outcome of the case. While this tired debate continues today, surprisingly little attention has been devoted to the significance of social science evidence in contemporary desegregation cases. These cases concern the dismantling of desegregation decrees and the constitutionality of voluntary integration plans. This Essay argues that the influence of social science evidence depends on three factors: the legal standards applied, the nature and strength of the social science evidence presented, and the nature of the issues presented. For both sets of modern desegregation cases, each of these factors points against the likelihood that social science evidence plays much of a role in determining the outcomes of the cases. After discussing the two main sets of modern desegregation cases, this Essay goes on to explore the potential role of social science evidence in related challenges to socioeconomic integration plans, state-based claims for integrated schools, and disparate impact claims under Title VI regulations. Although these programs and legal claims may offer slightly more room for social science evidence to play an influential role, this Essay argues that the ability of social science evidence to influence the outcome of any relevant court decisions remains fairly limited.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"81 1","pages":"1659"},"PeriodicalIF":0.0,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68604427","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Pluralism and Democratic Politics: Reflections on the Interpretive Approach of Baker V. Carr","authors":"G. Charles","doi":"10.2139/SSRN.312402","DOIUrl":"https://doi.org/10.2139/SSRN.312402","url":null,"abstract":"Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, I revisit Baker and provide several democratic principles that I argue justifies the Court's decision to engage the democratic process. I examine the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. I sketch an approach, described as constitutional pluralism, for thinking about Baker and other cases involving judicial supervision of democratic politics. Using constitutional pluralism as an interpretive tool, I argue that the aim of judicial involvement in democratic politics ought to be to vindicate specific democratic principles. I describe the conditions under which the federal courts should respect the judgment of democratic actors.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"80 1","pages":"1103"},"PeriodicalIF":0.0,"publicationDate":"2002-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564125","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman","authors":"Alafair S. Burke","doi":"10.2139/SSRN.307809","DOIUrl":"https://doi.org/10.2139/SSRN.307809","url":null,"abstract":"Current advocacy on behalf of battered women accused of criminal offenses focuses on the now familiar battered woman syndrome theory. Although the battered woman syndrome theory has enjoyed broad support when asserted by defendants claiming self-defense, the earnestness of the theory's judicial acceptance is questionable. First, in light of both empirical and analytical flaws in the battered woman syndrome theory, the overwhelming judicial acceptance of the theory is inconsistent with courts' growing tendency to scrutinize scientific evidence. Second, courts have been reluctant to extend the battered woman syndrome theory to the defense of duress, where the theory would excuse battered women who commit crimes with their batterers against innocent parties. That the syndrome theory has been controversial in duress cases, and yet widely accepted in the self-defense context, despite its analytical and scientific flaws, suggests that the battered woman syndrome has been used in the self-defense context to help sympathetic actors. This paper recommends an alternative approach to understanding the conduct of battered women. The self-defense claims of justified battered women have failed not because battered women are qualitatively different than other actors, but because current self-defense rules are imperfect generally and do not encompass all necessary uses of defensive force. An alternative approach to these cases would treat battered women as rational actors and ask whether their use of defensive force was necessary. Unlike the prevailing approach to the battered woman cases, the recommended rational actor approach preserves the importance of objective standards when justifying defensive force. Moreover, an emphasis upon objective standards when applying criminal defenses reconciles the existing tension between the treatment of battered women in the duress and self-defense contexts. Viewed as rational actors and not psychologically impaired, battered women who defend themselves against their batterers have stronger normative claims that their conduct was necessary than battered women who appease their batterers by victimizing third parties.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"81 1","pages":"211"},"PeriodicalIF":0.0,"publicationDate":"2002-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.307809","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68547596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}