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Articles 1 - 30 of 100
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Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson
Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson
Faculty Scholarship
Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best …
Trade, Law And Product Complexity, Katharina Pistor, Daniel Berkowitz, Johannes Moenius
Trade, Law And Product Complexity, Katharina Pistor, Daniel Berkowitz, Johannes Moenius
Faculty Scholarship
How does the quality of national institutions that enforce the rule of law influence international trade? Anderson and Marcouiller argue that bad institutions located in the importer’s country deter international trade because they enable economic predators to steal and extort rents at the importer’s border. We complement this research and show how good institutions located in the exporter’s country enhance international trade, in particular, trade in complex products whose characteristics are difficult to fully specify in a contract. We argue that both exporter and importer institutions affect international as well as domestic transaction costs in complex and simple product markets. …
The Journal: Fortieth Anniversary Volume, Debra A. Livingston
The Journal: Fortieth Anniversary Volume, Debra A. Livingston
Faculty Scholarship
This is to congratulate the editors of the Columbia Journal of Law and Social Problems as they mark the Journal's fortieth anniversary. The Journal's first editor-in-chief, Andrew Krulwich, recalled on the occasion of the thirtieth anniversary that the Journal "began as a germ of an idea to expand the law school journal experience to include more empirical methods and social issues." In 1965, when the first issue was published, there was a growing sense among students and professors that "the traditional sources of legal knowledge," including the established journals and the scholarly expectations that had grown up around them, were …
Objections In Conscience To Medical Procedures: Does Religion Make A Difference Lecture?, Kent Greenawalt
Objections In Conscience To Medical Procedures: Does Religion Make A Difference Lecture?, Kent Greenawalt
Faculty Scholarship
How should the government res pond if people refuse standard medical treatment? What should the government do if people refuse medical treatment for their children, and what autonomy should teenagers be given in making such choices? Is religion a proper basis for refusing such medical treatment? Furthermore, should medical practitioners have a privilege not to render services that they object to in conscience? This article analyzes such questions and proposes that the most sensible answers depend on context. Legislatures should sometimes create no exemptions, should sometimes create exemptions based on nonreligious criteria, and should sometimes use criteria framed in terms …
Public Preferences For Rehabilitation Versus Incarceration Of Juvenile Offenders: Evidence From A Contingent Valuation Survey, Daniel S. Nagin, Alex R. Piquero, Elizabeth S. Scott, Laurence Steinberg
Public Preferences For Rehabilitation Versus Incarceration Of Juvenile Offenders: Evidence From A Contingent Valuation Survey, Daniel S. Nagin, Alex R. Piquero, Elizabeth S. Scott, Laurence Steinberg
Faculty Scholarship
Research Summary:
Accurately gauging the public's support for alternative responses to juvenile offending is important, because policy makers often justify expenditures for punitive juvenile justice reforms on the basis of popular demand for tougher policies. In this study, we assess public support for both punitively and nonpunitively oriented juvenile justice policies by measuring respondents' willingness to pay for various policy proposals. We employ a methodology known as "contingent valuation" (CV) that permits the comparison of respondents' willingness to pay (WTP) for competing policy alternatives. Specifically, we compare CV-based estimates for the public's WTP for two distinctively different responses to serious …
The Media As Participants In The International Legal Process, Monica Hakimi
The Media As Participants In The International Legal Process, Monica Hakimi
Faculty Scholarship
We know what we know about current international events through the media. The media (with their instantaneous transmission of images and sound across great distances) inform us of everything from the train bombings in Madrid and London, to human rights abuses in Darfur, to the fall of Saddam Hussein’s Iraq. Yet the media do not simply communicate raw information; they selectively filter, define and give shape to the events that they cover — in terms of what is happening, whether it is appropriate, and how relevant international actors should and do respond. The media thus are the nerves of the …
The Paradox Of The Drug Elimination Program In New York City Public Housing, Jeffrey A. Fagan, Garth Davies, Jan Holland
The Paradox Of The Drug Elimination Program In New York City Public Housing, Jeffrey A. Fagan, Garth Davies, Jan Holland
Faculty Scholarship
In this study, we examine the effects of the DEP intervention at three levels of complementary theoretical and practical relevance: the public housing development itself, the neighborhood in which public housing is situated, and the police precinct where the tract is located. From surveys of residents, observations of program activities, and analyses of NYCHA's program records, we compiled detailed information on the components of DEP and the reactions of public housing residents to each type of intervention. We then analyzed panel data from 1985-1996 to estimate the effects of DEP on crime rates in and around the city's public housing …
Issues In Article Iii Courts, Debra A. Livingston
Issues In Article Iii Courts, Debra A. Livingston
Faculty Scholarship
Cases implicating classified information can pose difficult legal issues for Article III courts, and these issues may well grow more complicated and arise more frequently as the global war on terror continues. The manner in which these issues are resolved has profound implications for the national security, for the procedural rights of litigants, and for the public's ability to scrutinize legal proceedings. Indeed, the expanded use of secret evidence in Article III courts may raise questions about the very character of the courts themselves. Is there a point at which the demands placed upon these courts, pushing them in the …
Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault
Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault
Faculty Scholarship
LULAC’s treatment of the partisan gerrymandering question, thus, may be as significant for the continuing divisions and uncertainties it reveals as for the result it achieved. A majority of the Court is willing to grapple with the gerrymandering issue but that majority is internally torn over what makes partisan gerrymandering a constitutional problem and when judicial intervention is appropriate. The Court’s difficulty is understandable. Gerrymandering is a challenge to democratic self-government, but judicial intervention requires a judicially manageable theory of democracy compatible with the Constitution and our political institutions. It remains to be seen whether the Court can agree upon …
The "American" And The "International" In The American Journal Of International Law, Lori Fisler Damrosch
The "American" And The "International" In The American Journal Of International Law, Lori Fisler Damrosch
Faculty Scholarship
This essay explores the American and international components of the AJIL's identity, with attention to intellectual agendas as well as to individuals who have influenced the Journal in its first century. Part I asks about "American" and "international" preoccupations in the AJIL's substantive work, foreshadowing some of the themes to be developed in more depth in other essays in this centennial series. What have we understood to fall within the purview of an American journal of international law? Have we represented perspectives on our subject in a specifically American or a broadly international way? Part II looks at …
The Rose Theorem?, Michael Heller
The Rose Theorem?, Michael Heller
Faculty Scholarship
Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem – and that we borrowed from economics. Could there be a second, the Rose Theorem?
Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent …
Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu
Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu
Faculty Scholarship
The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But what …
After Dura: Causation In Fraud-On-The-Market Actions, Merritt B. Fox
After Dura: Causation In Fraud-On-The-Market Actions, Merritt B. Fox
Faculty Scholarship
On April 19, 2005, the Supreme Court announced its unanimous opinion in Dura Pharmaceuticals, Inc. v. Broudo, concerning what a plaintiff must show to establish causation in a Rule lob-5 fraud-on-the-market suit for damages. The opinion had been awaited with considerable anticipation, being described at the time of oral argument in the Financial Times, for example, as the "most important securities case in a decade." After the opinion was handed down, a representative of the plaintiffs' bar lauded it as a "unanimous ruling protecting investors' ability to sue." A representative of the defendants' bar equally enthusiastically hailed it as "a …
Disclosure And Fair Resolution Of Adverse Events, Carol B. Liebman, Chris Stern Hyman
Disclosure And Fair Resolution Of Adverse Events, Carol B. Liebman, Chris Stern Hyman
Faculty Scholarship
The health care system in the United States is in turmoil. Patients are being harmed by too many, often fatal, mistakes. At the same time, physicians and hospitals are trying to cope with a costly medical malpractice crisis. These two crises create a vicious cycle. When something goes wrong in patient care, physicians and hospitals withhold apologies and offer as little information as possible for fear that anything they say may be used against them should patients or family members sue. Family members, in many cases, sue not only to receive compensation for injuries, but also in search of answers …
Rights Myopia In Child Welfare, Clare Huntington
Rights Myopia In Child Welfare, Clare Huntington
Faculty Scholarship
For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict, rather than collaboration, between the state and families. In lieu of a solely rights-based …
The Essential Role Of Securities Regulation, Zohar Goshen, Gideon Parchomovsky
The Essential Role Of Securities Regulation, Zohar Goshen, Gideon Parchomovsky
Faculty Scholarship
This Article posits that the essential role of securities regulation is to create a competitive market for sophisticated professional investors and analysts (information traders). The Article advances two related theses – one descriptive and the other normative. Descriptively, the Article demonstrates that securities regulation is specifically designed to facilitate and protect the work of information traders. Securities regulation may be divided into three broad categories: (i) disclosure duties; (ii) restrictions on fraud and manipulation; and (iii) restrictions on insider trading – each of which contributes to the creation of a vibrant market for information traders. Disclosure duties reduce information traders’ …
The Accardi Principle, Thomas W. Merrill
The Accardi Principle, Thomas W. Merrill
Faculty Scholarship
This article is organized as follows. Part I reviews the history of the Accardi principle in the Supreme Court. We learn that the Court has intimated three different theories about the source of the Accardi principle, and has left many questions about its dimensions unanswered. Part II surveys the use of the principle by the D.C. Circuit. This provides additional insights into how the Accardi principle works in practice, including the importance of questions about the meaning of agency regulations and whether agency regulations can render otherwise unreviewable agency action subject to judicial review. Part III seeks to restate the …
The Limits Of Courage And Principle, Jedediah S. Purdy
The Limits Of Courage And Principle, Jedediah S. Purdy
Faculty Scholarship
Michael Ignatieff, the director of the Carr Center for Human Rights at Harvard's Kennedy School of Government, is not a lawyer. His work, however, treats issues of core concern to lawyers: nation-building, human rights, the ethics of warfare, and now, in his latest book, the proper relationship between liberty and security. The Lesser Evil is, in part, a book a legal scholar might have written: a normative framework for lawmaking in the face of the terror threat. It is also something more unusual: an exercise in an older type of jurisprudence. Ignatieff discusses law in the light of moral psychology …
"Contracting" For Credit, Ronald J. Mann
"Contracting" For Credit, Ronald J. Mann
Faculty Scholarship
On a recent day, I used my credit cards in connection with a number of minor transactions. I made eight purchases, and I paid two credit card bills. I also discarded (without opening) three solicitations for new cards, balance transfer programs, or other similar offers to extend credit via a credit card. Statistics suggest that I am not atypical. U.S. consumers last year used credit cards in about 100 purchasing transactions per capita, with an average value of about $70. At the end of the year, Americans owed nearly $500 billion dollars, in the range of $1,800 for every man, …
Domestic Partnerships, Implied Contracts, And Law Reform, Elizabeth S. Scott
Domestic Partnerships, Implied Contracts, And Law Reform, Elizabeth S. Scott
Faculty Scholarship
The domestic partnership chapter of the Principles is the shortest chapter, but, as the contributions to this volume suggest, among the most interesting to many people. The legal regulation of informal intimate unions generally and particularly the Principles' approach of creating a status that carries the legal rights and obligations of marriage between cohabiting parties have generated considerable debate. In some quarters, the domestic partnership provisions are admired as an effective mechanism to protect dependent partners in marriage-like unions who otherwise may be unable to establish claims to property and support when their relationships end. Others praise the Principles for …
Taxes That Work: A Simple American Plan, Michael J. Graetz
Taxes That Work: A Simple American Plan, Michael J. Graetz
Faculty Scholarship
In November 2005, the President's Advisory Panel on Tax Reform, appointed by President Bush to suggest options for reforming and simplifying the federal tax code, unanimously recommended two alternative plans: a "simplified income tax" (SIT) and a "growth and investment tax" (GIT). The two plans shared much in common. For example, both would: (1) Reduce the top marginal tax rate-to 33% under the SIT plan and 30% under GIT plan; (2) eliminate the alternative minimum tax (AMT); (3) replace the earned income tax credit (EITC) and refundable child credits with a "work credit"; (4) replace personal exemptions, the standard deduction, …
Institutional Coordination And Sentencing Reform, Daniel C. Richman
Institutional Coordination And Sentencing Reform, Daniel C. Richman
Faculty Scholarship
Deciding how much time a person should spend in prison for a serious crime is an inherently moral and political act. And it is certainly coldhearted and philosophically problematic to view sentencing as just an agency problem with criminal defendants as objects of a system in which prison terms are simply outputs. So I will not even try to justify resorting to a narrow institutional perspective as a normative matter. But, for better or worse, those political actors with the greatest influence on sentencing regimes have to think in aggregate terms. While there is considerable normative appeal to the idea …
Our International Constitution, Sarah H. Cleveland
Our International Constitution, Sarah H. Cleveland
Faculty Scholarship
This Article seeks to challenge and redirect contemporary debate regarding the role of international law in constitutional interpretation based upon an examination of historical Supreme Court practice. The Article has three goals: It first marshals the weight of evidence regarding the Supreme Court's historical use of international law in constitutional analysis, to rebut the claim that the practice is new. It then analyzes the ways that the Court has used international law from a legitimacy perspective, and finally draws lessons from the historical practice to offer preliminary suggestions- regarding the normatively appropriate use of international law.
The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah S. Purdy
The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah S. Purdy
Faculty Scholarship
Political thinkers have long worried that freedom might be selfundermining, tending to erode the liberal rights and democratic politics that form its foundations. The argument has ancient and modern versions, versions of the political left and of the right. No doubt the only adequate answer is the sum of the answers to many particular questions: whether and when popular elections undermine liberal rights, how free markets enhance or undermine democracy, and so forth. In this article, I address an emerging problem in a central area of contemporary freedom: reproductive autonomy. I ask whether reproductive autonomy can undermine the political conditions …
History, Human Nature, And Property Regimes: Filling In The Civilizing Argument, Jedediah S. Purdy
History, Human Nature, And Property Regimes: Filling In The Civilizing Argument, Jedediah S. Purdy
Faculty Scholarship
Carol Rose’s paper exemplifies qualities I have admired in Carol’s work since I first read her in 1999 and 2000. It also raises questions about her work and that of anyone who tries to follow in her footsteps. Because I am one of those chasers after methodological Rose petals, I am (at least) doubly interested in these questions.
The Promise (And Limits) Of Neuroeconomics, Jedediah S. Purdy
The Promise (And Limits) Of Neuroeconomics, Jedediah S. Purdy
Faculty Scholarship
Neuroeconomics — the study of brain activity in people engaged in tasks of reasoning and choice — looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This Article explains what is most exciting about the new field and lays out some specific research tasks for it.
The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy
The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy
Faculty Scholarship
This Article draws on an episode of nineteenth-century American doctrinal history to develop a pluralist approach to explaining changes in property law. It addresses the question: What causes account for the development of property regimes across time? The courts' answer emerges from examination of nineteenth-century American reform of the law of waste, which governs the changes tenants may make in the estates they occupy. A line of state supreme court cases, beginning in 1810, transformed the doctrine from the strict rule of English common law to a flexible standard. Economic analysis helps to explain the change; the full story, however, …
Simon Says Take Three Steps Backwards: The National Conference Of Commissioners On Uniform State Laws Recommendations On Child Representation, Jane M. Spinak
Simon Says Take Three Steps Backwards: The National Conference Of Commissioners On Uniform State Laws Recommendations On Child Representation, Jane M. Spinak
Faculty Scholarship
In considering whether I wanted to submit a response to this conference, I turned back to the Fordham Law Review's Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, now referred to by this conference's participants as Fordham. While the entire volume helped me to formulate this response, I want to begin by acknowledging Linda Elrod's and Ann Haralambie's two responses in Fordham as essential to my decision. In a few short pages they encapsulated the essential message of Fordham: that by the end of the last century, the practice of lawyers for children was to …
Framing Affirmative Action, Kimberlé W. Crenshaw
Framing Affirmative Action, Kimberlé W. Crenshaw
Faculty Scholarship
With the passage of the Michigan Civil Rights Initiative ("MCRI"), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls "racial preferences" to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination.
On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …
Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh
Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh
Faculty Scholarship
The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …