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2006

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Articles 8161 - 8190 of 11613

Full-Text Articles in Law

The Law And Economics Of Preliminary Agreements, Alan Schwartz, Robert E. Scott Jan 2006

The Law And Economics Of Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law encourages parties to make relation-specific investments by enforcing the contracts the parties make, and by denying liability when the parties had failed to agree. For decades, the law has had difficulty with cases where parties sink costs in the pursuit of projects under agreements that are too incomplete to enforce, and where one of the parties prefers to exit rather than pursue the contemplated project. The issue whether to award the disappointed party any remedy has divided a large number of courts over many years. The judicial uncertainty arises, we claim, because the questions why parties make such ...


'Une Chose Publique'? The Author's Domain And The Public Domain In Early British, French And Us Copyright Law, Jane C. Ginsburg Jan 2006

'Une Chose Publique'? The Author's Domain And The Public Domain In Early British, French And Us Copyright Law, Jane C. Ginsburg

Faculty Scholarship

Much contemporary copyright rhetoric casts copyright as a derogation from a primordial public domain. Placing the public domain in the initial position buttresses attempts to contain a perceived over-expansion of copyright. I do not take issue with the normative role these endeavors assign to the public domain. The public domain is today and should remain copyright's constraining counterpart. But normative arguments that also claim the support of history may be fundamentally anachronistic. The ensuing examination of the respective domains of author and public at copyright's inception, in 18th-19th century Britain, France and America, reveals more ambiguity than today ...


Capital Punishment And Capital Murder: Market Share And The Deterrent Effects Of The Death Penalty, Jeffrey Fagan, Franklin Zimring, Amanda Geller Jan 2006

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

Faculty Scholarship

Both legal scholars and social scientists have leveraged new research evidence on the deterrent effects of the death penalty into calls for more executions that they claim will save lives and new rules to remove procedural roadblocks and hasten executions. However, the use of total intentional homicides to estimate deterrence is a recurring aggregation error in the death penalty debate in the U.S.: by studying whether executions and death sentences affect all homicides, these studies fail to identify a more plausible target of deterrence - namely, those homicides that are punishable by death. By broadening the targets of deterrence, these ...


Congress, Article Iv, And Interstate Relations, Gillian E. Metzger Jan 2006

Congress, Article Iv, And Interstate Relations, Gillian E. Metzger

Faculty Scholarship

Article IV imposes prohibitions on interstate discrimination that are central to our status as a single nation, yet the Constitution also grants Congress broad power over interstate relations. This leads to the questions of whether Congress has power to authorize states to engage in conduct that otherwise would violate Article IV, and more generally of how we should conceive of Congress' role in the interstate relations context, what is sometimes called the horizontal dimension of federalism. These questions are of growing practical relevance, given recently enacted or proposed measures - the Defense of Marriage Act (DOMA) is the most prominent example ...


Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley Jan 2006

Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley

Faculty Scholarship

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient ...


Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt Jan 2006

Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt

Faculty Scholarship

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we ...


Overseer, Or 'The Decider'? The President In Administrative Law, Peter L. Strauss Jan 2006

Overseer, Or 'The Decider'? The President In Administrative Law, Peter L. Strauss

Faculty Scholarship

All will agree that the Constitution creates a unitary chief executive officer, the President, at the head of the government Congress defines to do the work its statutes detail. Disagreement arises over what his function entails. Once Congress has defined some element of government and specified its responsibilities, we know that the constitutional roles of both Congress and the courts are those of oversight of the agency and its assigned work, not the actual performance of that work. But is it the same for the President? When Congress confers authority on the Environmental Protection Agency to regulate various forms of ...


Separating From Children, Carol Sanger Jan 2006

Separating From Children, Carol Sanger

Faculty Scholarship

In this article I want to challenge the existing rules of maternal engagement and reconsider how we think about separations between mothers and their children as a matter of cultural inquiry and as a matter of law. Specifically, I examine the ways in which law regulates this complex but not uncommon aspect of motherhood and compare legal assessments about maternal decisions to separate from children with the judgments of mothers themselves. My argument is that the present scheme of regulation sustains social understandings regarding mother-child separations with little attention to the circumstances of mothers' lives that prompt their decisions to ...


A Case For Civil Marriage, Carol Sanger Jan 2006

A Case For Civil Marriage, Carol Sanger

Faculty Scholarship

There has been a frenzy of legislative activity aimed at nailing down the legal definition of marriage to make sure that there will be no more nonsense about same-sex monograms or same-sex marriage applications. In an effort to slow down the frenzy, and to encourage those within the academy to think harder about the on-going problem of what to do about marriage, Professor Edward Stein has posed a straightforward question: Should civil marriage simply be abolished? In this mini-symposium, Professors Edward Zelinsky and Daniel Crane have provided two answers to his question: yes and yes. Although I am a Contract ...


Regulating Teenage Abortion In The United States: Politics And Policy, Carol Sanger Jan 2006

Regulating Teenage Abortion In The United States: Politics And Policy, Carol Sanger

Faculty Scholarship

Thirty-four US states currently require pregnant minors either to notify their parents or get their consent before having a legal abortion. The Supreme Court has upheld the constitutionality of theses statutes provided that minors are also given an alternative mechanism for abortion approval that does not involve parents. The mechanism used is the 'judicial bypass hearing' at which minors persuade judges that they are mature and informed enough to make the abortion decision themselves. While most minors receive judicial approval, the hearings intrude into the most personal aspects of a young woman's life. The hearings, while formally civil in ...


Editing, Carol Sanger Jan 2006

Editing, Carol Sanger

Faculty Scholarship

We are all familiar with the process. At its best, law review editing, like editing elsewhere in the academic and literary worlds, results in a piece improved in style, structure, and content. Too often, however, law review articles are not so much improved as simply changed, sometimes hundreds of times within a single manuscript. My purpose here is not to complain line by line about various dissatisfactions with the editing of my little review. I accept that authors, like teenagers convinced the world is focused on their every imperfection, are more aware of perceived deficiencies in an article than any ...


Introduction: Celebrating Stanley Lubman, Benjamin L. Liebman, R. Randle Edwards Jan 2006

Introduction: Celebrating Stanley Lubman, Benjamin L. Liebman, R. Randle Edwards

Faculty Scholarship

On April 15, 2005 more than sixty scholars from China, North America, and Europe gathered at Columbia Law School for a conference in honor of Stanley Lubman. The conference celebrated Stanley's seventieth year-and more importantly, his tremendous contribution to the field of Chinese legal studies. This special edition of the Columbia Journal of Asian Law includes a selection from the twenty papers presented at the conference.


Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault Jan 2006

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 ...


Immigration Reform And Control Of The Undocumented Family, Carol Sanger Jan 2006

Immigration Reform And Control Of The Undocumented Family, Carol Sanger

Faculty Scholarship

The Immigration Reform and Control Act of 1986 (IRCA), Congress' attempt to clean up the problem of illegal immigration in the United States, puts a great number of undocumented alien families, mostly Mexican, to a hard test. Under IRCA's amnesty provisions, every alien must individually meet the eligibility requirements, such as having lived in the United States since before January 1, 198,. But many aliens who satisfy those requirements have spouses or children who do not. Thus while eligible aliens may adjust to a legal immigration status, their ineligible family members must either leave the United States or remain ...


Seasoned To The Use, Carol Sanger Jan 2006

Seasoned To The Use, Carol Sanger

Faculty Scholarship

In this essay I argue that through the powerful coincidence of popularity, genre, and theme, Presumed Innocent and The Good Mother reinforce notions about the relation between good sex and bad mothering, and advance serious, nonfiction messages for women about law and sex.


M Is For The Many Things, Carol Sanger Jan 2006

M Is For The Many Things, Carol Sanger

Faculty Scholarship

My basic argument is this: Motherhood is a central but confusing icon within our social structure. It is at once domination and dominated, much as mothers are both revered and regulated. The reverence and regulation are not so much in conflict as in league. The rules remind women of how to behave in order to stay revered. This reverence is something more than a fan club for mothers. It matters in such practical and concrete ways as keeping one's children, having credibility in court, getting promoted at work, and so on.


Keynote Address: Adolescence And The Regulation Of Youth Crime, Elizabeth S. Scott Jan 2006

Keynote Address: Adolescence And The Regulation Of Youth Crime, Elizabeth S. Scott

Faculty Scholarship

I am delighted to be a part of this Symposium on Law and Adolescence. My talk today is about adolescent development and juvenile justice policy. Specifically, I will focus on why a legal regime that is grounded in scientific knowledge about adolescence and the role of criminal activity during this developmental period is better for young offenders and for society than the contemporary policy, which often pays little attention to differences between adolescents and adults.

My talk is based on a book on juvenile justice policy I am currently writing with Larry Steinberg, a developmental psychologist who is a leading ...


William H. Rehnquist In Memoriam, John G. Roberts Jr., Kerri Martin Bartlett, Thomas W. Merrill, Michael K. Young Jan 2006

William H. Rehnquist In Memoriam, John G. Roberts Jr., Kerri Martin Bartlett, Thomas W. Merrill, Michael K. Young

Faculty Scholarship

No abstract provided.


Delinquency And Crime In Nevada, Stephanie Kent, Deborah K. Shaffer Jan 2006

Delinquency And Crime In Nevada, Stephanie Kent, Deborah K. Shaffer

Reports

The United States has always had significantly higher crime rates than other developed nations, and its juvenile crime rates repeat this pattern. Scholars have offered various explanations for this discrepancy, ranging from structural reasons such as a high level of income inequality in the U.S. to the cultural values that encourage Americans to be individualistic, seek autonomy, and engage in violent conduct. Crime issues have received a good deal of attention from American scholars and politicians, with delinquency remaining a major focus of criminological inquiry for more than 50 years. While scholarly literature now includes many studies focused on ...


Addiction And Substance Abuse In Nevada, An-Pyng Sun, Larry Ashley Jan 2006

Addiction And Substance Abuse In Nevada, An-Pyng Sun, Larry Ashley

Reports

Substance abuse is known to cause a host of problems for individual users, their communities, and society as a whole. Its cost is staggering, as measured by lost productivity, medical illness, serious injuries, and premature death, as well as by resources required to run criminal justice system and special education programs (Meara & Frank, 2005). The substance abuse problem is global in scope. Consider these figures released by the United Nations’ 2005 World Drug Report[WDR] (United Nations, Office on Drug and Crime, 2005),

  • In 2003-2004, about 200 million people, or 5% of the world’s population age 15-64, had used ...


Taxation Burden And Fairness In Nevada, Bernard Malamud, Marc Hechter Jan 2006

Taxation Burden And Fairness In Nevada, Bernard Malamud, Marc Hechter

Reports

Nevada has long been a low-tax state. In a 1968 study, The Amount and Source of State Taxes in Nevada, Robert Rieke reported taxes on Nevada residents were considerably below the national average as a fraction of income. These taxes were regressive, falling more heavily on low income Nevadans than on high income Nevadans.


Making Prisons Safe: Strategies For Reducing Violence, Donald Specter Jan 2006

Making Prisons Safe: Strategies For Reducing Violence, Donald Specter

Washington University Journal of Law & Policy

If prison administrators provide humane conditions and require strict adherence to commonly accepted and nationally recognized techniques for regulating the unnecessary use of force, prisons can be reasonably safe for both prisoners and staff. Although the threat posed by gangs presents special problems, the traditional approach to correctional safety—suppression and isolation—has not been successful. The experiences of some innovative programs around the country, as discussed below, suggests the success of a radically different approach: closely monitored integration coupled with incentives and tools to help prisoners leave the gangs.


Toward Increased Transparency In The Jails And Prisons: Some Optimistic Signs, Michael Gennaco Jan 2006

Toward Increased Transparency In The Jails And Prisons: Some Optimistic Signs, Michael Gennaco

Washington University Journal of Law & Policy

Leaders of the organizations responsible for maintaining the prisons and jails have not been responsive to the public and have not openly reported the facts and conclusions generated by internal inquiries. Moreover, even if the agency provides generic assurances that a thorough investigation was conducted and “appropriate action taken,” the lack of supporting detail does little to inform the public about whether any action, in fact, taken was actually appropriate.


Trade, Law And Product Complexity, Katharina Pistor, Dan Berkowitz, Johannes Moenius Jan 2006

Trade, Law And Product Complexity, Katharina Pistor, Dan 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 ...


Introduction, Anita L. Allen Jan 2006

Introduction, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Aspirational Rights And The Two-Output Thesis, Mitchell N. Berman Jan 2006

Aspirational Rights And The Two-Output Thesis, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman Jan 2006

Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr. Jan 2006

Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Jury Trial And The Principles Of Transnational Civil Procedure, Geoffrey C. Hazard Jr. Jan 2006

Jury Trial And The Principles Of Transnational Civil Procedure, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick Jan 2006

Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick

Faculty Scholarship at Penn Law

The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights.

Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data ...