Digital Commons Network^™

The Perceived Authority Of Law In Judging Constitutional Cases, Kent Greenawalt

Faculty Scholarship

The purpose of this conference is a dialogue between scholars and judges about judging. Because judges have many opportunities to read what scholars think, and scholars don't very often have this kind of chance to hear judges reflect on their own experiences and perspectives, I expect the main benefit to go to us scholars. However, for many questions of jurisprudential interest, figuring out what relevance different judicial experiences might have is complicated, and extensive discussion may be necessary to learn what really matters.

I shall focus on a question that has lain at. the center of jurisprudential discussion in the …

Panel Iii: Congressional Control Of The Administration Of Government: Hearings, Investigators, Oversight, And Legislative History, Stephen Williams, Griffin Bell, L. Gordon Crovitz, Peter L. Strauss, Michael Davidson

Faculty Scholarship

My remarks will be the first on the panel to address the problems of legislative history. We have heard two quite illuminating discussions of congressional oversight activities, with which I largely agree philosophically. When one then reaches the questions of why is this happening, and whether anything can be done about it, the issues become more difficult. My remarks address some complications that may arise from the current distaste for legislative history that may make the oversight problem a little bit worse.

The Demand For Tax Return Preparation Services, Jeffrey A. Dubin, Michael J. Graetz, Michael A. Udell, Louis L. Wilde

Faculty Scholarship

We analyze taxpayer choices of return preparation services. We distinguish between two types of nonpaid preparers, six types of paid third parties, and self-preparation. Among other things, we find significant differences in the factors which explain the demand for paid third parties who are and are not able to represent clients before the IRS. Among these factors are increases in IRS audit rates and the frequency of IRS penalties.

The World Trading System: Law And Policy Of International Economic Relations, Lori Fisler Damrosch

Faculty Scholarship

This book serves an important need by providing a clear overview of an increasingly complex subject. The author, a leading figure in international trade law, has distilled his accumulated wisdom into an accessible account of the major features of the world trading system. His intended audience includes not only lawyers, but political scientists, economists, government officials and others as well. While he acknowledges that his own "comparative advantage" is in the legal aspects of the field (p. 6), he places the legal concepts in their political and economic context to write a treatment that will be enlightening to readers from …

The Strategic Structure Of Offer And Acceptance: Game Theory And The Law Of Contract Formation, Avery W. Katz

Faculty Scholarship

The purpose of this article is to promote a particular research program; namely, the use of game theory to analyze the law of contract formation. Although I will often simply speak of offer and acceptance in my discussion, I mean to refer to a broader set of issues than are commonly denoted by this doctrinal label. My program transcends the narrow issue of whether particular communications technically should be classified as offers and acceptances, and includes questions often analyzed under the rubrics of implication and interpretation. At its broadest, my argument addresses all legal rules that answer two types of …

Rational Decisionmaking About Marriage And Divorce, Elizabeth S. Scott

Faculty Scholarship

The apparent normative goal of modem divorce law is the efficient termination of unsuccessful marriages. Once the couple (or either party) determine that the marriage is no longer satisfactory, then quick and easy exit is deemed desirable. As Carl Schneider suggests, the law has withdrawn from moral discourse about divorce, adopting a neutral stance toward marital dissolution. Although divorce typically imposes formidable psychological and economic costs, there are few legal incentives to remain married, or even to consider thoughtfully the decision to end the marriage. Moreover, although decisions about marriage and divorce have important legal implications, the law does nothing …

Determinants Of Judicial Waiver Decisions For Violent Juvenile Offenders, Jeffrey Fagan, Elizabeth Piper Deschens

Faculty Scholarship

The selection of jurisdiction for adjudicating juvenile crime today is one of the most controversial debates in crime control policy, reflecting differences in assumptions about the causes of crime and philosophies of jurisprudence and punishment. For adolescent offenders, especially violent youth whose behaviors may pose particular social danger, critics view the traditional goals of the juvenile court and the "best interests of the child" standard as being at odds with public concerns for retribution and incapacitation of criminals. The choice between jurisdictions is a choice between the nominally rehabilitative dispositions of the juvenile court and the explicitly punitive dispositions of …

Wealth And Property, Thomas W. Merrill

Faculty Scholarship

Professor Stephen Munzer's study of property rights is an ambitious work. Drawing on sources as diverse as Hohfeld, Hegel, Locke, civic republicanism, Marx, the classic utilitarians, and Rawls, he seeks to develop a "pluralist" theory of property, one that synthesizes a variety of philosophical perspectives into a single "basic theory" that can be used to assess and promote the reform of different property systems. Like most attempts to achieve a grand philosophical synthesis, however, this one ultimately fails. The most obvious problem is that Munzer's basic theory is too vague and unwieldy to generate determinate answers to the kinds of …

How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch

Faculty Scholarship

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …

A Conceptual, Practical, And Political Guide To Rico Reform, Gerard E. Lynch

Faculty Scholarship

RICO is nearing its twentieth birthday, but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes.

As the pressure for change has intensified, and …

When The Judge Is Not The Primary Official With Responsibility To Read: Agency Interpretation And The Problem Of Legislative History, Peter L. Strauss

Faculty Scholarship

As the other pages of this journal reflect, writing about statutory interpretation commonly builds on unarticulated assumptions about the occasion for interpretation, the identity of the interpreter, and the character of the interpreted text. In this paradigm, the occasion for interpretation is a litigated case – an episode has occurred for which the application of the statute is problematic. The interpreter is a judge, a person who resolves litigation – typically episodic, typically backwards – working outside of politics, and bearing no generic responsibility (that is, responsibility outside the decision of the case before her) for the statutory regime. And …

Aversion To Risk Aversion In The New Institutional Economics, Victor P. Goldberg

Faculty Scholarship

One significant division that emerged during the conference involved the role of risk aversion in analyzing institutional arrangements. I, along with Oliver Williamson, took the position that the risk aversion assumption deflects attention from the more significant determinants and that more progress would be made if we could bind our hands and agree to invoke attitudes toward risk only as a last resort. Professor Richter has graciously given me this opportunity to elaborate upon this theme.

The International Trading System, Jagdish N. Bhagwati

Faculty Scholarship

The 25th Anniversary of the founding of UNCTAD is an occasion to remember, not for its failures, which it shares inevitably with every international organization that is set up to address complex economic issues that concern developing countries with diverse constraints and objectives, but for its successes, which have been unduly neglected.

Here, I shall recount only three of the many intellectual accomplishments focusing on the early lead that UNCTAD has provided on questions that have attracted academic attention and invited policy redress in national and international fora.

Learned Hand And The Self-Government Theory Of The First Amendment: Masses Publishing Co. V. Patten, Vincent A. Blasi

Faculty Scholarship

Sitting as a federal district judge in the case of Masses Publishing Co. v. Patten, Learned Hand was called upon to interpret the Espionage Act of 1917 just six weeks after its passage. The Act was potentially the most speech-restrictive piece of federal legislation since the Alien and Sedition Acts of 1798. Judge Hand recognized this and ruled that the terms of the Act must be construed in light of the first amendment. He defined the limits of legally protected war criticism, and presumably of political advocacy generally, according to a test that makes the crucial consideration the content of …

O'Er The Land Of The Free: Flag Burning As Speech, Kent Greenawalt

Faculty Scholarship

I am honored to lecture at this school, which has a number of friends, and a much larger circle of scholars whose work I admire. I am honored to lecture in the memory of Melville Nimmer, one of the country's leading thinkers on freedom of speech as well as its foremost expert on copyright. I met Professor Nimmer only once, at a lunch with Vince Blasi. My recollection of the lunch is distinct. Gently and in the most friendly way, but with irrefutable logic, they showed me that a position I had held for more than a decade about immigration …

How Law Can Be Determinate, Kent Greenawalt

Faculty Scholarship

This Article, part of a longer study, considers one problem about the objectivity of law. The problem is whether the law as it exists provides determinate answers to many legal questions for judges, other officials, and citizens. I emphasize the word many. This Article does not focus on "hard cases" and then ask whether single correct answers for them exist. It does not inquire whether in some complicated sense all legal questions have determinate answers. This is a treatment of easy legal questions. To most lawyers, it may seem self-evident that many legal questions do have determinate answers; and that …

In Pursuit Of Workplace Rights: Household Workers And A Conflict Of Laws, Suzanne B. Goldberg

Faculty Scholarship

At some point in their lives, most people who live in the United States labor for pay. By becoming "work force members," they are immediately entitled and obligated to participate in government programs, such as Social Security, that are designed to protect workers' health and financial security. In certain sectors of the work force, however, employer (and employee) noncompliance with these laws is rampant. The problem is particularly severe for private household workers migrant farmworkers, and undocumented workers generally. Officially acknowledged nonenforcement is widespread as well, leaving employers free to disregard explicit legal obligations with little fear of reprisal.

In …

Intellectual And Informational Property Rights: Panel Iv - Introduction: Property In Mass Media Law, Lee C. Bollinger

Faculty Scholarship

This is the panel on intellectual and informational property rights. As you can see, there are three panelists other than myself: Ed Kitch, Stephen Carter, and Frank Easterbrook.

I want to begin with just a few thoughts on an area that I know something about: press and media law. I would like to say two things about the notion of property and how it arises in the context of a few problems in the area of mass media law.

Violence As Regulation And Social Control In The Distribution Of Crack, Jeffrey A. Fagan, Ko-Lin Chin

Faculty Scholarship

This chapter examines violence and aggression among crack and other illicit drug sellers in New York City. Few studies have addressed the origins of drug selling, specifically whether such drug violence reflects generalized violence or violent behaviors contingent on drug selling. Aggression in crack selling appears to be commonplace and severe (Goldstein et al., unpublished manuscript; Goldstein 1989; Johnson, et al. 1990; New York Times 1989b) and is the focus of this study. Aggression evident in nondrug criminality is compared for crack sellers and other seller types. If violence in drug selling is a distinct behavior that reflects the contingencies …

The Rule Of Law And The Two Realms Of Welfare Administration, William H. Simon

Faculty Scholarship

Although it was not the first case in which the Supreme Court upheld a welfare claim, Goldberg v. Kelly is often thought of as the case that extended the rule of law to the welfare system. In doing so, it repudiated the "right/privilege" distinction that would confine procedural protections of economic interests to private law claims.

But Goldberg did not challenge basic assumptions about the nature of procedural fairness that the legal culture had developed principally in connection with private law claims. Its conception of fairness focused on claims initiated by individuals for relief for themselves, and on an adjudicatory …

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

The Devolution Of The Legal Profession: A Demand Side Perspective, Ronald J. Gilson

Faculty Scholarship

Economic analysis has not played a significant role in the increasingly intense debate over the decline of professionalism among lawyers.Economists' lack of interest in the issue may be understandable. The lawyers' lament is that the legal profession is devolving into the business of law. That this concern has not captured the economists' attention may reflect only that economists do not view the label "business" as a pejorative. If becoming a business means efficiently rendering an important service in a competitive environment, then of what is there to complain?

Lawyers, more directly concerned with maintaining their professional status, would find little …

Intoxication And Aggression, Jeffrey Fagan

Faculty Scholarship

Evidence of an association between use of illicit substances and aggressive behavior is pervasive. But the precise causal mechanisms by which aggression is influenced by intoxicants are still not well understood. Research on intoxication and aggression often has overlooked the nonviolent behavior of most substance users, controlled use of substances, and the evidence from other cultures of a weak or nonexistent relation between substance use and aggression. There is only limited evidence that ingestion of substances is a direct, pharmacological cause of aggression. The temporal order of substance use and aggression does not indicate a causal role for intoxicants. Research …

The Case For Market Damages: Revisiting The Lost Profits Puzzle, Robert E. Scott

Faculty Scholarship

An old and cardinal rule of contract law requires that expectancy damages for breach of contract put the injured party in the position she would have occupied had the contract been performed. Courts and commentators have accepted this full performance compensation principle as the central objective of the expectancy remedy, pursuant to which they have developed many more precise formulas for various types of cases. But the simplicity of the full performance principle disguises substantial problems in its application. One of the least recognized of these problems is the tendency of courts and commentators to determine the contractual expectancy ex …

Our Localism: Part I – The Structure Of Local Government Law, Richard Briffault

Faculty Scholarship

Two themes dominate thejurisprudence of American local government law: the descriptive assertion that American localities lack power and the normative call for greater local autonomy. The positive claim of local legal powerlessness dates back to the middle of the nineteenth century and continues to be affirmed by treatises and commentators as a central element of state-local relations. The argument for local selfdetermination has a comparably historic pedigree and broad contemporary support. The scholarly proponents of greater local power – what I will call "localism" – make their case in terms of economic efficiency, education for public life and popular political …

Our Localism: Part Ii – Localism And Legal Theory, Richard Briffault

Faculty Scholarship

A central theme in the literature of local government law is that local governments are powerless, incapable of initiating programs on behalf of their citizens or of resisting intrusions by the state. How can scholars make this claim when under state legislation and federal and state judicial decisions local autonomy plays a critical role in the law of school finance, land-use regulation and local government formation and preservation? As we have seen, a partial response turns on the varying assessments of the nature of power. But much of the answer also has to do with differing assumptions about the underlying …

Desegregating Politics: "All-Out" School Desegregation Explained, James S. Liebman

Faculty Scholarship

School desegregation is not dead. It lives quietly in what used to be the Confederate South. Notwithstanding the Reagan and Bush Administrations' ten-year campaign to limit the legal, remedial, and temporal scope of court-ordered integration plans throughout the nation, desegregation persists in southern rural areas where substantial numbers of black Americans continue to reside and in southern urban areas where school districts were organized in 1970 to encompass not only the inner city but also the suburbs. By many accounts, moreover, desegregation is an effective and accepted – one may even say respected – member of the family of social …

Women In The Aids Epidemic: A Portrait Of Unmet Needs, Arlene Zarembka, Katherine M. Franke

Faculty Scholarship

While rarely a month goes by that the topic of AIDS escapes discussion in the legal literature, a survey of legal publications reveals that the implications of AIDS for women has received scant treatment by legal commentators. Unfortunately, this neglect is not unique to the legal community, but reflects a larger societal disinterest in women with AIDS.

In fact, this epidemic looks quite different from the perspective of women. The medical, social, and legal needs of women affected by AIDS are in many ways needs that preexisted AIDS, but which have been magnified by the threat and implications of HIV …

Introduction: The Role Of Interest Groups In The Appointment Process, Thomas W. Merrill

Faculty Scholarship

We heard this morning about the Bork nomination from a legal perspective and then this afternoon about the Bork nomination from a historical perspective. This panel is going to discuss the Bork nomination from the social scientific perspective. In particular, the focus of the panel will be on the roll of interest groups in that process.

More Than "Slightly Retro:" The Rehnquist Court's Rout Of Habeas Corpus Jurisdiction In Teague V. Lane, James S. Liebman

Faculty Scholarship

Someone I know, more a student of contemporary fashion than I, sometimes describes people dressed in uniformly dark clothing as "slightly retro." I am not sure of the allusion, but what I can discern leads me to think that the Supreme Court's nonretroactivity decisions beginning with Teague v. Lane are – puns aside – more than just "slightly retro."

The Court's innovation may be stated as follows: For 160 years, Congress empowered federal judges to order state officials to release or retry individuals held in custody in violation of federal law as those federal judges, and not the state officials, …