Law Commons^™

Nationalism And Internationalism: The Wilsonian Legacy, Lori Fisler Damrosch

Faculty Scholarship

No twentieth-century leader has had greater influence on the parallel development of both nationalism and internationalism than Woodrow Wilson. Wilson gave expression to the nationalist aspirations of peoples around the world, through is endorsement of the principle of self-determination. He also initiated the first institution that had as its objective the organization of the international community to apply concerted power in support of universal values. My task is to examine one contemporary problem – intervention – in the light of some of the themes implicit in the Wilsonian legacy. Among these themes will be the establishment (and now the invigoration) …

Solomonic Bargaining: Dividing A Legal Entitlement To Facilitate Coasean Trade, Ian Ayres, Eric Talley

Faculty Scholarship

It is a common argument in law and economics that divided ownership can create or exacerbate strategic behavior. For instance, when several persons own the land designated for a proposed stadium, individual sellers may "hold out" for a disproportionate share of the gains from trade. Alternatively, when building a public library would benefit multiple residents, individual buyers may "free ride" on the willingness of others to pay for its construction. Such transaction costs of collective action fall under a variety of analytic rubrics, including the "tragedy of the commons" and the theory of "public goods." Nonetheless, each example of market …

Two Social Movements, Thomas W. Merrill

Faculty Scholarship

Two social movements in the last fifty years have had a profound impact on our understanding of law and the role of the courts in our system of government. One is the civil rights movement. The demand for greater racial and gender equality and other civil rights has changed the face of the law in countless ways. For example, it has called into question – or at least required a fundamental revision in – the traditional understanding that the courts should interpret the Constitution and laws in accordance with their original meaning. Decisions such as Brown v. Board of Education …

Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill

Faculty Scholarship

The last decade has been a remarkable one for statutory interpretation. For most of our history, American judges have been pragmatists when it comes to interpreting statutes. They have drawn on various conventions – the plain meaning rule, legislative history, considerations of statutory purpose, canons of construction – "much as a golfer selects the proper club when he gauges the distance to the pin and the contours of the course." The arrival of Justice Scalia on the Supreme Court has changed this. Justice Scalia is a foundationalist, insisting that certain interpretational tools should be permanently banned from judicial use. What …

Trivial Rights, Philip A. Hamburger

Faculty Scholarship

In the summer of 1789, when the House of Representatives was formulating the amendments that became the Bill of Rights, Theodore Sedgwick of Massachusetts argued against enumerating the right of assembly. The House, he urged, "might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper ... [Was] it necessary to list these trifles in a declaration of rights, under a Government where none of them were …

The Victims Of Nimby, Michael B. Gerrard

Faculty Scholarship

It is a syndrome, a pejorative, and an acronym of our times: NIMBY, or Not In My Back Yard. It has a political arm, NIMTOO (Not In My Term Of Office), an object of attack, LULUs (Locally Undesired Land Uses), and an extreme form, BANANA (Build Absolutely Nothing Anywhere Near Anyone). Acronyms aside, however, the question remains as to whether or not NIMBY has victims. Is anyone hurt by NIMBY?

Many leading voices in the environmental justice movement believe that minority communities are victims of NIMBY. For example, Professor Robert D. Bullard has written that "[t]he cumulative effect of not-in-my-backyard …

The Role Of Existing Environmental Laws In The Environmental Justice Movement, Michael B. Gerrard

Faculty Scholarship

I will focus on what can and cannot be done under the existing statutory and regulatory structures and the common law to protect minority communities from environmental hazards. I will highlight some of the current holes in the legal system to suggest areas where statutory reform might be useful. Fights against these facilities break down between future unbuilt facilities, on the one hand, and existing facilities on the other hand.

A broad array of statutes regulates future facilities, such as landfills, incinerators, interstate highways, and polluting factories. Some of these laws are aimed at providing information and requiring the decision …

Fear And Loathing In The Siting Of Hazardous And Radioactive Waste Facilities: A Comprehensive Approach To A Misperceived Crisis, Michael B. Gerrard

Faculty Scholarship

Few laws have failed so completely as the federal and state statutes designed to create new facilities for the disposal of hazardous and radioactive waste. Despite scores of siting attempts and the expenditure of several billion dollars since the mid-1970s, only one radioactive waste disposal facility, only one hazardous waste landfill (in the aptly named Last Chance, Colorado), and merely a handful of hazardous waste treatment and incineration units are operating on new sites in the United States today.

In 1981, a leading member of Congress, relying on data from the U.S. Environmental Protection Agency (EPA), predicted that by 1985 …

"What About The 'Ism'?" Normative And Formal Concerns In Contemporary Federalism, Richard Briffault

Faculty Scholarship

Contemporary legal discourse concerning federalism has shifted from the formal to the normative, that is, from a focus on the fifty states as unique entities in the American constitutional firmament to a concern with the values of federalism. This normative turn has had some salutary effects. It has sharpened the debate over federalism, reminded us of the impact of the federal design on the substance of American governance, and underscored the interrelationship of government structure and individual rights. But the normative approach has also, paradoxically, moved the focus of federalism away from the states. Many of the arguments offered on …

Unburdening The Undue Burden Standard: Orienting Casey In Constitutional Jurisprudence, Gillian E. Metzger

Faculty Scholarship

"Liberty finds no refuge in a jurisprudence of doubt." With these words in the 1992 case, Planned Parenthood v. Casey, the Supreme Court ushered in a new era of abortion regulation. Speaking through a joint opinion authored by Justices O'Connor, Kennedy, and Souter, the Court indicated that from this point forth abortion regulations would be judged by an "undue burden" standard. According to this standard, an abortion regulation is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion" of a nonviable fetus.

The Justices who wrote …

Considering Zenger: Partisan Politics And The Legal Profession In Provincial New York, Eben Moglen

Faculty Scholarship

History is the narration of the past, and not all valuable history is true. When William Smith, Jr. first wrote his much-admired and widely distributed History of the Province of New-York, in 1756, he ended his narration twenty-four years before his own time, with the arrival of Governor William Cosby in New York on August 1, 1732. In justification of his abrupt termination at this particular point, Smith wrote:

The history of our publick transactions, from this period, to the present time, is full of important and entertaining events, which I leave others to relate. A very near relation …

What Happens When Mediation Is Institutionalized?: To The Parties, Practitioners, And Host Institutions, James J. Alfini, John Barkai, Robert Baruch Bush, Michele Hermann, Jonathan Hyman, Kimberlee Kovach, Carol B. Liebman, Sharon Press, Leonard Riskin

Faculty Scholarship

The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at the 1994 AALS Conference, on the institutionalization of mediation – through courtconnected programs and otherwise. The topic is an important one, because this phenomenon has become increasingly common in recent years. Moreover, the topic seemed especially appropriate for the 1994 program, since Florida – the host state for the conference – was one of the first states to adopt a comprehensive statute providing for court-ordered mediation (at the trial judge's option) in civil disputes of all kinds. The move toward institutionalizing mediation has raised …

Gay Rights Through The Looking Glass: Politics, Morality, And The Trial Of Colorado's Amendment 2, Suzanne B. Goldberg

Faculty Scholarship

Courts have long struggled to resolve the question of how far a community may go in exercising its power to treat minority members differently. Popular prejudice, "community morality" and invidious stereotypes repeatedly have had their day in court as judges work to reconcile equal protection and privacy rights with their own attitudes about the place of people of color, women and gay people in society. In the early 1990s, the tension between the American ideal of equality and the reality of human diversity starkly emerged. A national wave of citizen-sponsored initiatives seeking to amend state constitutions and local charters to …

Environmental Commercial Law – Update On Seqra Lawsuits For 1994, Michael B. Gerrard

Faculty Scholarship

The Courts decided 57 cases1 in 1994 under the New York State Environmental Quality Review Act (SEQRA).2 As in prior years,3 this column presents a statistical summary of these cases and analyzes emerging trends. The 57 cases last year are about the same number as in 1993, but are down from the 70-75 seen annually in the early 1990s.

Shouting Down The Voice Of The People: Political Parties, Powerful Pac's And Concerns About Corruption, Clarisa Long

Faculty Scholarship

The Federal Election Campaign Act limits the amount of financial support that political parties may give to candidates for federal office. Clarisa Long argues that these restrictions violate political parties' First Amendment rights of speech and association. Because the flow of money in the political process is a proxy for speech, the First Amendment requires that political actors have access to at least one unrestricted avenue of communication. While individuals' and PACs' First Amendment rights are protected because they may make unrestricted independent expenditures, parties do not have this opportunity. Courts have failed to protect party speech, rationalizing that the …

What Is Punishment Imposed For?, George P. Fletcher

Faculty Scholarship

The institution of punishment invites a number of philosophical queries. Sometimes the question is: How do we know that inflicting discomfort and disadvantage is indeed punishment? This is a critical question, for example, in cases of deportation or disbarment proceedings. Classifying the sanction as punishment triggers application of the Sixth Amendment and its procedural guarantees. In other situations the question might be: Why do we punish? What is the purpose of making people suffer? In this context, we encounter the familiar debates about the conflicting appeal of retribution, general deterrence, special deterrence, and rehabilitation.

In this article I wish to …

Below-Market Interest On Loans And Installment Sales: Tax Consequences, William T. Hutton

Faculty Scholarship

No abstract provided.

The Theories Of Federal Habeas Corpus, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Summaries Of Justice Raymond L. Sullivan's Majority Opinions On The Supreme Court Of California, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Justice Sullivan: The Teacher, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Check Your Crystal Ball At The Courthouse Door, Please: Exploring The Past, Understanding The Present, And Worrying About The Future Of Scientific Evidence, David L. Faigman, Elise Porter, Michael J. Saks

Faculty Scholarship

No abstract provided.

The Market And The Community: Lessons From California's Drought Water Bank, Brian E. Gray

Faculty Scholarship

No abstract provided.

The Modern Era In California Water Law, Brian E. Gray

Faculty Scholarship

No abstract provided.

Are Rules Really Better Than Standards?, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Introduction, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Some Reflections About Justice Sullivan, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Sentencing: Capital Punishment, Jodi L. Short, Mark D. Spoto

Faculty Scholarship

No abstract provided.

The Summons Power And Tax Court Discovery: A Different Perspective, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Taxes, Morals, And Legitimacy, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Why The Wind Changed: Intellectual Leadership In Western Law, Ugo Mattei

Faculty Scholarship

No abstract provided.