In Praise of Footnotes

Edward R. Becker
It has become fashionable to deride the use of footnotes in judicial opinions and to call for their elimination. Footnotes, it is alleged, interrupt the flow of the opinion, distract the reader, add to the opinion’s length and complexity, and too often diminish the opinion’s clarity by qualifying and hedging its holding. The clarion call to dispense with footnotes comes from impressive quarters, including several of America’s most respected judges-Justice…

Family as a Rational Classification

David D. Haddock and Daniel D. Polsby
Using family as an operational surrogate in a statutory plan aimed at assuring the stability of a neighborhood is overbroad because it thereby rules out many legitimate associations that would not introduce neighborhood instability. Additionally,family is underinclusive in that it allows many arrangements that would undermine neighborhood stability. Our desire is to understand how the world came to be the way it is-why prejudices and conventions assumed the forms that…

Court Mediation and the Search for Justice Through Law

Jacqueline M. Nolan-Haley
The trend toward court mediation is remarkable because our civil justice system has traditionally promised justice through law. The promise of mediation is different: Justice is derived, not through the operation of law, but through autonomy and self-determination. When mediation occurs in court, significant policy questions arise: What happens to law? To justice? Do they collapse in the experience of self-determination? If so, what then happens to the promise of…

Liberalism, Democratic Citizenship, and Welfare Reform: The Troubling Case of Workfare

James W. Fox Jr.
This Article critiques the application of work requirements to the provision of welfare. It further provides a framework for understanding how work requirements can and cannot be imposed on citizens consistent with a developed-as opposed to a caricatured-theory of liberal democracy. The Article concludes that reform advocates, in their efforts to focus on social citizenship, eviscerate political and legal citizenship. Part II of this Article presents the basic arguments of…

The Invisibility Factor: The Limits of Public Choice Theory and Public Institutions

Public choice theory, which seeks to apply economic analysis to the political process, is “one of the dominant themes in contemporary legal scholarship.” Public choice is not simply a scholarly theory, but is also used frequently in judicial decisionmaking. Therefore, the theory must be carefully examined to expose its flaws. This Article’s thesis is that because public choice theory underestimates the ability of the majority to influence the political process,…

Parental Autonomy Versus Children’s Health Rights: Should Parents Be Prohibited from Smoking in the Presence of Their Children?

Mireille O. Butler