Digital Commons Network^™

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 …

Centennial Essays: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The first words of the first essay published in our pages pose a challenge as prescient as it is timely:

The increase of popular control over national conduct, which marks the political development of our time, makes it constantly more important that the great body of the people in each country should have a just conception of their international rights and duties.

With this precept in mind, we begin our celebration of the one-hundredth anniversary of the American Journal of lnternational Law and its publisher, the American Society of International Law.

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 …

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 …

Dilution, Clarisa Long

Faculty Scholarship

Ever since the creation of federal dilution law, legal commentators have expressed consternation about this variation of the trademark entitlement. Prior to the advent of this form of protection, the owner of a mark could recover for trademark infringement under the Lanham Act only if the commercial use of its mark by someone else caused consumer confusion. By contrast, dilution grants trademark holders an injunctive remedy for the use of their famous marks by another even when consumers are not confused. This Article explores how federal dilution law is actually being judicially enforced. To do so, it examines the enforcement …

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use …

After Confidentiiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon

Faculty Scholarship

Recent business scandals and the regulatory responses to them raise basic questions about the role of the business lawyer. Lawyers were major participants in Enron and in similar controversies over corporate disclosure. Lawyers have also been key players in the corporate tax shelter industry. In both instances, their conduct has prompted federal regulations that repudiate to an unprecedented degree the bar's traditional understanding of its structure and obligations.

The provision of the Sarbanes-Oxley Act of 2002 mandating "up-the-ladder" reporting by public corporation counsel was the first federal statute in American history to regulate lawyers directly and broadly. The second came …

The Ethics Teacher's Bittersweet Revenge: Virtue And Risk Management, William H. Simon

Faculty Scholarship

Insurance companies have come to play a role in professional responsibility compliance that rivals that of courts and disciplinary agencies. The insurers, however, depart from the judicial perspective of the traditional enforcement agencies. Instead, they take the risk management perspective that Anthony Alfieri describes.

I agree with Alfieri that risk management poses real dangers of cynicism and Babbittry. Nevertheless, I also see more upside than he does. The new perspective is valuable, not just as a strategy for attracting student attention, but as an antidote to real and basic deficiencies in mainstream ethics teaching and traditional professional practice. In this …

Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann

Faculty Scholarship

This Article explores the relationship between consumer credit markets and bankruptcy policy. In general, I argue that the causative relationships running between borrowing and bankruptcy compel a new strategy for policing the conduct of lenders and borrowers in modern consumer credit markets. The strategy must be sensitive to the role of the credit card in lending markets and must recognize that both issuers and cardholders are well placed to respond to the increased levels of spending and indebtedness. In the latter parts of the Article, I recommend mandatory minimum payment requirements, a tax on distressed credit card debt, and the …

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 …

Learning To Learn: Undoing The Gordian Knot Of Development Today, Charles F. Sabel, Sanjay G. Reddy

Faculty Scholarship

The deep flaw of existing approaches to development is their dirigisme: the assumption, common to nearly all development theory, that there is an expert agent that already sees the future. A common thread connects the emergent alternatives to development orthodoxy: the enhancement of the conditions of individual and collective learning. This approach to development highlights the existence of unresolved problems and the necessity of problem solving in every sphere. The enhancement of the conditions of learning can be the key to improving performance, resolving deadlocks, and overcoming blockages, at every level at which common dilemmas and collective problem solving occur …

The Problem Of Authority: Revisiting The Service Conception, Joseph Raz

Faculty Scholarship

The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained currency …

Reforming The Securities Class Action: On Deterrence And Its Implementation, John C. Coffee Jr.

Faculty Scholarship

Securities class actions impose enormous penalties, but they achieve little compensation and only limited deterrence. This is because of a basic circularity underlying the securities class action: When damages are imposed on the corporation, they essentially fall on diversified shareholders, thereby producing mainly pocket-shifting wealth transfers among shareholders. The current equilibrium benefits corporate insiders, insurers, and plaintiffs' attorneys, but not investors. The appropriate answer to this problem is not to abandon securities litigation, but to shift the incidence of its penalties so that, in the secondary market context, they fall less on the corporation and more on those actors who …

On Public Versus Private Provision Of Corporate Law, Gillian K. Hadfield, Eric L. Talley

Faculty Scholarship

Law in modern market societies serves both democratic and economic functions. In its economic function, law is a service, a means of enhancing the value of transactions and organizations. Yet modern market economies continue to rely on the state, rather than the market, to provide this service. This paper investigates whether private provision of law may be superior to public provision. We look in particular at corporate law, where there is a substantial literature exploring the efficiency implications of "regulatory competition" and compare this competition with market competition between private providers. Drawing from the well-known framework of spatial models of …

Transsystemia – Are We Approaching A New Langdellian Moment? Is Mcgill Leading The Way?, Peter L. Strauss

Faculty Scholarship

To start, I'd like you to imagine an agglomeration of twenty to thirty jurisdictions experiencing a profound change in the nature of their economic realities. Their economies, and thus the transactions within them and the businesses that conduct them, have been predominantly local in character. Now, political and economic developments are producing businesses and transactions increasingly trans-jurisdictional in character. Increasingly the counseling, drafting, and litigating that goes on in lawyers' offices involves not one jurisdiction but two or three. What happens to legal education?

As the United States emerged from the Civil War and a truly national economy began to …

"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, …

Gendered Subjects Of Transitional Justice, Katherine M. Franke

Faculty Scholarship

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and …

Emergency Exemptions From Environmental Laws After Disasters, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes had their origins in disasters. And when disasters strike, the environmental laws come into play in the response. Some have urged Congress to adopt emergency exemptions so that the environmental laws do not interfere with rescue and recovery.

This article explains how disasters helped create our current statutes, and then describes the role that environmental laws played in the immediate response to the September 11 attacks and Hurricane Katrina. It catalogs the multiple exemptions that already exist in the current environmental statutes and regulations and then summarizes the exemptions that were proposed after Hurricane Katrina.

A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg

Faculty Scholarship

History and tradition have emerged, together, as contemporary flagship arguments for limiting marriage to different-sex couples. According to advocates of "traditional marriage," same-sex couples can be excluded from marriage today because marriage always has been reserved to male-female couples. Further, some contend, the restriction of marriage to different-sex couples has long been understood as necessary to provide channels to control naturally procreative (i.e., male-female) relationships.

However popular these claims might be in op-ed pieces and on talk radio, when they are made in the litigation context, the question is not whether they have rhetorical appeal but rather whether they can …

Income Tax Discrimination And The Political And Economic Integration Of Europe, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant EU income tax legislation, because no EU political institution has the power to enact such legislation without unanimous consent from the member states. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of …

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …

Rulemaking In The Ages Of Globalization And Information: What America Can Learn From Europe, And Vice Versa, Peter L. Strauss

Faculty Scholarship

This Article stems from a project on European Union Administrative Law undertaken by the American Bar Association's Section on Administrative Law and Regulatory Practice. It explores the generation of normative texts by the Commission of the European Union, its executive body, from the perspective of Americans familiar with notice and comment rulemaking. Legislative drafting (an exclusive responsibility of the Commission), subordinate measures corresponding to American rules and regulations, and soft law generated by the Commission are all considered In creating legislative proposals, the Commission uses techniques quite like American rulemaking, but with consultative practices (including electronic consultations) that seem more …

Capital Punishment And Capital Murder: Market Share And The Deterrent Effects Of The Death Penalty, Jeffrey Fagan, Franklin Zimring, Amanda Geller

Faculty Scholarship

The modem debate on deterrence and capital punishment, now in its fourth decade, was launched by two closely timed events. The first was the 1976 United States Supreme Court decision in Gregg v. Georgia, which restored capital punishment after its brief constitutional ban following Furman v. Georgia in 1972. In 1975, Professor Isaac Ehrlich published an influential article saying that during the 1950s and 1960s, each execution averted eight murders. Although Ehrlich's article was a highly technical study prepared for an audience of economists, its influence went well beyond the economics profession. Ehrlich's work was cited favorably in Gregg …

Social Contagion Of Violence, Jeffrey Fagan, Deanna L. Wilkinson, Garth Davies

Faculty Scholarship

Since 1968, violence and other crimes in New York City have followed a pattern of recurring epidemics. There have been three consecutive and contiguous cycles characterized by sharp increases in homicides and assaults to an elevated rate followed by equally steep declines to levels near the previous starting point. The most recent epidemic, from 1985-96, had the sharpest rise and steepest decline of the three epidemics. Popular explanations of the current epidemic fail to account for both the rise and fall of the decline, or for the repetitive pattern of these epidemics. In this article, we use public health data …

Less Is Better: Justice Stevens And The Narrowed Death Penalty, James S. Liebman, Lawrence C. Marshall

Faculty Scholarship

In a recent speech to the American Bar Association, Justice John Paul Stevens "issued an unusually stinging criticism of capital punishment." Although he "stopped short of calling for an end to the death penalty," Justice Stevens catalogued a number of its "'serious flaws,'" including several procedures that the full Court has reviewed and upheld over his dissent – selecting capital jurors in a manner that excludes those with qualms about the death penalty, permitting elected state judges to second-guess jurors when they decline to impose the death penalty, permitting states to premise death verdicts on "victim impact statements," tolerating sub-par …

Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene

Faculty Scholarship

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty – and communitarian – William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the …

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Faculty Scholarship

Forever, it seems, the power to shape public morality has been seen as central to American governance. As one of the morality tradition's chief promoters, the Supreme Court itself has regularly endorsed and applauded government's police power to regulate the public's morality along with the public's health and welfare.

How, then, can we make sense of the Court's declaration in Lawrence v. Texas that the state's interest in preserving or promoting a particular morality among its constituents did not amount even to a legitimate interest to justify a Texas law criminalizing sexual intimacy between consenting adults? Has the Court unforeseeably …

Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens

Faculty Scholarship

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational – they are a …

From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard Harcourt

Faculty Scholarship

The incarceration revolution of the late twentieth century fueled ongoing research on the relationship between rates of incarceration and crime, unemployment, education, and other social indicators. In this research, the variable intended to capture the level of confinement in society was conceptualized and measured as the rate of incarceration in state and federal prisons and county jails. This, however, fails to take account of other equally important forms of confinement, especially commitment to mental hospitals and asylums.

When the data on mental hospitalization rates are combined with the data on imprisonment rates for the period 1928 through 2000, the incarceration …

Broken Windows: New Evidence From New York City And A Five-City Social Experiment, Bernard Harcourt, Jens Ludwig

Faculty Scholarship

In 1982, James Q. Wilson and George Kelling suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. More than twenty years later, the three most populous cities in the United States – New York, Chicago, and, most recently, Los Angeles – have all adopted at least some aspect of Wilson and Kelling's theory, primarily through more aggressive enforcement of minor misdemeanor laws. Remarkably little, though, is currently known about the effect of broken windows policing on crime.

According to a recent National Research Council report, existing research does not provide …