Law Commons^™

Public Finance In The American Federal System: Basic Patterns And Current Issues, Richard Briffault

Faculty Scholarship

Public finance issues with significant consequences for American federalism have been at the top of the political agenda for the last several years. Indeed, much of the current debate about American federalism has been explicitly about questions of public finance: Which level of government should pay for which programs? What is to be the relationship between financial responsibility and policy-making authority? Should there be some overall limitation on government outlays and receipts?

Thus, one of the first actions of the 104th Congress was passage of a measure, swiftly signed into law by the President, to curb the ability of the …

U. S. Federalism And Intellectual Property, Jane C. Ginsburg

Faculty Scholarship

The federal structure of the U.S. government presents interesting questions for intellectual property. Which government, national or state, exercises regulatory authority? Or do both governments play a significant role? Questions of this order cannot be addressed unless one first analyzes what the term "intellectual property" comprehends. Intellectual property includes well-recognized regimes of exclusive rights in inventions (patents), literary, artistic and musical creations (copyrights), and trademarks. But it also covers more elusive, and evolving, interests, such as exploitation of one's personal name and image (right of publicity), trade secrets, and a generalized concern with prevention of acts amounting to unlicensed appropriation …

La Protection Aux Etats-Unis Des Oeuvres D'Art, Jane C. Ginsburg

Faculty Scholarship

French Abstract
Les Etats-Unis sont un marche important d'oeuvres d'art, non seulement pour la vente des tableaux, mais aussi pour !'exploitation de reproductions et d'adaptations des images. Par exemple, en dehors des reproductions traditionnelles telles que celles contenues dans des catalogues et livres d'art et des reproductions sous forme de cartes postales et affiches, une oeuvre d'art originairement corn;ue comme une expression des beaux arts peut s'exploiter telle par exemple une sortie de bain, du papier peint, voire un decor de poubelle. Dans quelle mesure un artiste peut-il etre remunere ou meme s'opposer a J'exploitation commerciale de son oeuvre aux …

Religious Liberty And Democratic Politics, Kent Greenawalt

Faculty Scholarship

Some time ago, President Clinton talked to a gathering of religious journalists about abortion. He said that he did not believe that the biblical passages often cited by those who are "pro-life" indicate· clearly that abortion is wrong and should be prohibited. The reasons many people have for wanting abortion to be prohibited, or for allowing abortion, relate to their religious convictions. These people, for the most part, regard it as perfectly appropriate that religious perspectives help determine public policy on abortion in the United States. Others object. They say that the religious views of some people should not be …

Welfare Reform And Child Care: A Proposal For State Legislation, Clare Huntington

Faculty Scholarship

Without subsidized child care, Dianne Williams, the mother of an eighteen-month-old son, would never have left welfare and earned the post-secondary degree that led to her current job as a senior secretary; Tammy Stinson, a U.S. Air Force veteran and 29-year-old mother of two children, would spend up to $150 of her weekly $200 salary on child care, increasing the likelihood she would turn to welfare or live in poverty; Jerry Andrews, a graduate of a government-funded early childhood education program, might not earn $31,200 a year and be working towards an engineering degree. These individuals are lucky. The vast …

Religious Expression In The Public Square – The Building Blocks For An Intermediate Position, Kent Greenawalt

Faculty Scholarship

The problem of religious expression in the public square is not primarily legal in a narrow sense. We are not talking about whether people are allowed to voice certain kinds of opinions or to vote on certain kinds of grounds. The problem is about how citizens and officials in liberal democracies should act. My own position on this problem is an intermediate one, in a sense I shall shortly explain. Its plausibility depends on some sense of the strengths and weaknesses of positions at each end of the spectrum. I shall begin with a thumbnail sketch of these.

A Tribute To Jerry Israel: A Friend With A Messy Office, Debra A. Livingston

Faculty Scholarship

My legal education began with Jerry Israel.

During the fall of 1977, I was assigned to his section of Criminal Law. From the very first day of class, Jerry made it clear to us that the problems of crime and punishment were at once profoundly important and elusively difficult. Jerry taught from judicial opinions in the classic Socratic mode. Each day we were forced to grapple with the perplexing manner in which the language of precedent, so comforting when first encountered in the frame of an opinion, turned to quicksilver when tested against new cases, real or hypothetical.

The Sovereign Immunity Exception Comment, Henry Paul Monaghan

Faculty Scholarship

Seminole Tribe v. Florida is the 1995 Term's illustration of the importance that a narrow, but solid, five-Justice majority of the Supreme Court attaches to the constitutional underpinnings of "Our Federalism." In Seminole Tribe, this majority declared that Congress lacks authority under its Article I, Section 8 regulatory powers to subject unconsenting states to suits initiated in federal court by private persons. The very same majority had previously made clear its intention to implement the original constitutional understanding of a national government of limited powers, especially when the national government attempted to "commandeer" state legislative and administrative processes. This …

Bork V. Burke, Thomas W. Merrill

Faculty Scholarship

I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of our society." …

Should Lawyers Obey The Law?, William H. Simon

Faculty Scholarship

At the same time that it denies authority to nonlegal norms, the dominant view of legal ethics (the "Dominant View") insists on deference to legal ones. "Zealous advocacy" stops at the "bounds of the law."

By and large, critics of the Dominant View have not challenged this categorical duty of obedience to law. They typically want to add further public-regarding duties, but they are as insistent on this one as the Dominant View.

Now the idea that lawyers should obey the law seems so obvious that it is rarely examined within the profession. In fact, however, once you start to …

The Local Government Boundary Problem In Metropolitan Areas, Richard Briffault

Faculty Scholarship

Local government boundaries play an important role in the governance of metropolitan areas by defining local electorates and tax bases and the scope of local regulatory powers and service responsibilities. Yet, the close association of local powers with local boundaries generates spillovers, fiscal disparities, and interlocal conflicts. Real local autonomy is constrained but the local government system fails to provide a means for addressing regional problems. Public choice theorists and political decentralizationists oppose regional governments because of the threat to local autonomy that would result from removing powers from local hands. Richard Briffault's solution to the metropolitan governance problem is …

Corporate Governance And Economic Efficiency: When Do Institutions Matter?, Ronald J. Gilson

Faculty Scholarship

Until the 1980s, corporate governance was largely the province of lawyers. It was a world of specific rules – more or less precise statutory requirements governing shareholder meetings, the election of directors, notice requirements and the like – that were essentially unrelated to what corporations actually do. From this perspective, the corporation's productive activity was simply a black box onto which standard governance structures were superimposed with little effect on what took place within. Corporate law was "trivial" or, as Bayless Manning so evocatively portrayed it, simply "great empty corporation statutes – towering skyscrapers of rusted girders internally welded together …

Confusing Punishment With Custodial Care: The Troublesome Legacy Of Estelle V. Gamble, Philip Genty

Faculty Scholarship

For the better part of two centuries, imprisonment has been the primary means of punishment for non-capital offenses in the United States. A person, once convicted, is turned over to an institution that will regulate every minute of her or his life. Yet, despite the central role that prisons have long played in our society, the use of the Constitution to regulate conditions of confinement in prisons is a relatively recent phenomenon. Certainly, part of this has to do with the fact that constitutional litigation did not begin in earnest until the "rediscovery" of the Civil War era civil rights …

When Should An Offer Stick? The Economics Of Promissory Estoppel In Preliminary Negotiations, Avery W. Katz

Faculty Scholarship

The purpose of this Article is to examine the doctrine of promissory estoppel, as it applies in the context of preliminary negotiations, from the viewpoint of the economic theory of rational choice. This is part of a larger project that attempts to understand better the regulatory role of contract formation law generally. From a regulatory vantage point, estoppel and related legal doctrines operate as economic regulations; they shape the bargaining process by influencing the negotiators' incentives to make and to rely on preliminary communications. As with all economic regulations, however, some rules do better than others at promoting efficient exchange, …

Is There A General Trend In Constitutional Democracies Toward Parliamentary Control Over War-And-Peace Decisions?, Lori Fisler Damrosch

Faculty Scholarship

My hypothesis is that there is a general trend toward subordinating war powers to constitutional control, and that this trend includes a subtrend toward greater parliamentary control over the decision to introduce troops into situations of actual or potential hostilities. UN peace operations present one variant of a recurring problem for constitutional democracies, as do collective security and collective enforcement operations under the auspices of the United Nations or a regional body such as the North Atlantic Treaty Organization (NATO).

John Milton's Areopagitica And The Modern First Amendment, Vincent A. Blasi

Faculty Scholarship

The traditional liberal argument for free speech is now under fire from several directions. Critics from the left, the center, and the right find simplistic the claim that unregulated expression promotes the search for truth, the protection of self-government, the autonomy of individuals, and the control of concentrated power. Even if free speech does serve these values to a considerable degree, there are costs associated with liberty, costs the critics say are not sufficiently recognized in the standard liberal accounts.

As a general matter, but especially regarding the freedom of speech, liberalism is seen as too doctrinaire, too optimistic about …

Comparative Risk Assessment In New York, Michael B. Gerrard, Deborah Goldberg

Faculty Scholarship

Comparative risk assessment (CRA) is the examination of the relative risks posed by different dangers, with a view to deciding which dangers deserve the most governmental attention. CRA frequently tries to reduce different problems to a common metric, usually the statistical lives saved by a program, so that apples can be weighed against oranges. This article will discuss and assess the growing use of CRA in New York State.

There are two principal arguments for the use of CRA in the environmental context. The first is that we do not have unlimited resources; we cannot move against all problems simultaneously. …

Regulatory Cooperation Between The European Commission And U.S. Administrative Agencies, George Bermann

Faculty Scholarship

This Article examines the policies and practices of the European Commission toward various forms of bilateral regulatory cooperation with administrative agencies of the United States. To place this Article's findings in a proper perspective, it is essential to understand both (A) the selection of the European Community (E.C.) as an appropriate overseas regulatory jurisdiction for such cooperation and (B) the reasons for focusing on the European Commission among the various E.C. institutions. Those questions are taken up in this Introduction. Part I describes in some detail the organization and functioning of the Commission. Part II – the core of this …

The Role Of Firearms In Violence "Scripts": The Dynamics Of Gun Events Among Adolescent Males, Deanna L. Wilkinson, Jeffrey Fagan

Faculty Scholarship

In recent years, the use and deadly consequences of gun violence among adolescents has reached epidemic proportions. At a time when national homicide rates are declining, the increasing rates of firearm deaths among teenagers is especially alarming. Deaths of adolescents due to firearm injuries are disproportionately concentrated among nonwhites, and especially among African-American teenagers and young adults. Only in times of civil war have there been higher within-group homicide rates in the United States. There appears to be a process of self-annihilation among male African-American teens in inner cities that is unprecedented in American history. Unfortunately, few studies have examined …

Viewpoints From Olympus, Kent Greenawalt

Faculty Scholarship

This Essay examines the Supreme Court's treatment of content and viewpoint discrimination in Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Court adopted a very expansive approach to what constitutes viewpoint discrimination, the form of content discrimination most disfavored by the Constitution. The Court held that a public university could not decline to fund publication of Wide Awake, a magazine devoted to proselytizing for Christianity, if it funded other student publications. Justice Kennedy's opinion for the Court accepted the argument of the sponsors of Wide Awake that the University had engaged in …

F. Hodge O'Neal Corporate And Securities Law Symposium: Path Dependence And Comparative Corporate Governance, Ronald J. Mann, Curtis J. Milhaupt

Faculty Scholarship

The study of institutions, and particularly the study of institutions that societies use to govern business enterprises, is at a point of transition. In the last two or three decades, scholars focusing on economic principles to define appropriate legal rules and corporate institutions rose up to challenge the traditional orthodoxy of corporate governance found in the Berle and Means corporation.

One of the most exciting trends in the literature rests upon the "increasing marginal returns" school of economics associated with Brian Arthur and the Santa Fe Institute. The traditional neoclassical economic theory of production, familiar from decades of undergraduate and …

Separating From Children, Carol Sanger

Faculty Scholarship

On September 1, 1939, in anticipation of the imminent German bombing of British cities, 150,000 children were assembled at the railway stations of London and sent throughout the day to "'destinations unknown'" in the English countryside. Mothers and children under five were evacuated together but school-age children were shipped out to rural billets in school groups, accompanied only by their teachers and civil defense volunteers. Forty years later, an observer remembered the day vividly:

[T]he mothers [were] trying to hold back their tears as they marched these little boys and girls in their gas masks into the centre …. The …

Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt

Faculty Scholarship

Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.

Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme …