Law Commons^™

Policing Guns And Youth Violence, Jeffrey A. Fagan

Faculty Scholarship

To combat the epidemic of youth gun violence in the 1980s and 1990s, law enforcement agencies across the United States adopted a variety of innovative strategies. This article presents case studies of eight cities' efforts to police gun crime. Some cities emphasized police-citizen partnerships to address youth violence, whereas others focused on aggressive enforcement against youth suspected of even minor criminal activity. Still others attempted to change youth behavior through "soft" strategies built on alternatives to arrest. Finally, some cities used a combination of approaches. Key findings discussed in this article include:

• Law enforcement agencies that emphasized police-citizen cooperation benefited …

The Demsetz Thesis And The Evolution Of Property Rights, Thomas W. Merrill

Faculty Scholarship

Both conventional price theory and standard economic accounts of tort and contract law assume fixed property rights. In fact, however, property regimes are not static but change over time. Given the assumption of fixed property that otherwise prevails in economic literature, explaining the evolution of property rights is one of the great challenges for the economic analysis of law.

The point of departure for virtually all efforts to explain changes in property rights is Harold Demsetz’s path‐breaking article, “Toward a Theory of Property Rights.” The article is still widely cited and reproduced, especially in first‐year property courses in law schools. …

It's A Question Of Market Access, Kyle W. Bagwell, Robert W. Staiger, Petros C. Mavroidis

Faculty Scholarship

In this paper, we argue that market access issues associated with the question of the optimal mandate of the World Trade Organization should be separated from nonmarket access issues. We identify race-to-the-bottom and regulatory-chill concerns as market access issues and suggest that the WTIO should address these concerns. We then describe ways that WTO principles and procedures might be augmented to do so. As for nonmarket access issues, we argue that as a general matter these are best handled outside the WTO, and that, while implicit links might be encouraged, explicit links between the WTO and other labor and environmental …

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Faculty Scholarship

No abstract provided.

Patterns Of Courtroom Justice, Jessica Silbey

Faculty Scholarship

Any one film can sustain a myriad of compelling interpretations. A collection of films, however, sharing formal and substantive qualities, reveals a common effect more than a diversity of meanings. This essay traces the shared formal and substantive qualities of a group of films, as I name them 'trial films'. It documents this genre of film by identifying the genre's norms of viewing and identification. It also investigates the peculiar hybrid discourse of the trial film genre that combines both filmic and legal discursive practices to show how trial films cultivate support for the American system of law through its …

The Role Of Law In The Functioning Of Federal Systems, George A. Bermann

Faculty Scholarship

Federal systems are about the distribution of legal and political power, but law is not only one of the currencies of federalism, it is also one of federalism's most important supports; this chapter considers the role that law plays in establishing and enforcing the system by which both legal and political power are distributed within the USA and the EU. Bermann explores the various ways in which the courts can, and choose to, enforce the principles of federalism beyond the classical ‘political’ and ‘procedural’ safeguards provided by the institutional structures themselves and the constraints on the deliberative process. He describes …

Litigation Governance: A Gentle Critique Of The Third Circuit Task Force Report, John C. Coffee Jr.

Faculty Scholarship

The Third Circuit Task Force on the Selection of Class Counsel (the "Task Force") has worked hard, considered everything, and exhaustively summarized the problems associated with class counsel auctions. Its views will undoubtedly resonate with most of the Bench and the vast majority of the Bar-neither of whom were enthusiastic about the prospect of auctions in the first place. Personally, I agree with the Task Force that auctions are not the most promising reform and that they may exacerbate, rather than correct, existing problems. Still, what is missing from the Task Force Report is the candid recognition that the agency …

Judicial Auditing, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

This paper presents a simple framework for analyzing a hierarchical system of judicial auditing. We concentrate on (what we perceive to be) the two principal reasons that courts and/or legislatures tend to scrutinize the decisions of lower echelon actors: imprecision and ideological bias. In comparing these two reasons, we illustrate how each may yield systematically distinct auditing and reversal behaviors. While auditing for imprecision tends to bring about evenhanded review/reversal, auditing for political bias tends to be contingent on the first mover's chosen action. Examples of these tendencies can be found in a number of legal applications, including administrative law, …

Open Texture And The Possibility Of Legal Interpretation, David B. Lyons

Faculty Scholarship

This essay concerns the possibility of interpreting law. It is always possible to interpret law in the weak sense, which assigns meaning it is not assumed the law previously possessed. My concern here is interpretation in the strong sense, which, if successful, reveals meaning that lies hidden in the law. Theories of legal interpretation have recently received much theoretical attention. The received theory of law's open texture suggests that this interest is misplaced.

The Lawlessness In Our Courts, Susan P. Koniak

Faculty Scholarship

Elsewhere I have argued that the word "law" is too important a resource to reserve exclusively for state acts and pronouncements.⁵ Here, however, my emphasis is somewhat different. Here, I want to concentrate on the importance of denying the label of "law" to some acts that the state calls "law," particularly the importance of lawyers denying the state's indiscriminate use of the word "law." The bar's rhetoric maintains that the profession's independence from the state is critically important because only an independent bar can serve as an appropriate check on tyranny, on state force masquerading as law.⁶ Well, …

Human Rights And Health - The Universal Declaration Of Human Rights At 50, George J. Annas

Faculty Scholarship

War, famine, pestilence, and poverty have had obvious and devastating effects on health throughout human history. In recent times, human rights have come to be viewed as essential to freedom and individual development. But it is only since the end of World War II that the link between human rights and these causes of disease and death has been recognized.1-3 The 50th anniversary of the Universal Declaration of Human Rights — signed on December 10, 1948 — provides an opportunity to review its genesis, to explore the contemporary link between health and human rights, and to develop effective human-rights …

Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke

Faculty Scholarship

In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …

The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis

Faculty Scholarship

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …

A Tale Of Two Lawyers, Paul D. Carrington

Faculty Scholarship

No abstract provided.

The Polygamous Heart?, Katharine B. Silbaugh

Faculty Scholarship

Workers, particularly women, are increasingly vocal about the poverty of family time that their jobs allow them. But what if a company responded by offering family-friendly policies that would reduce work hours, like job-sharing and parttime work, and no one signed up for them? What if instead workers signed up for “familyfriendly” services like long-hour on-site daycare that made it easier to stay at work longer? Sociologist Arlie Hochschild seeks to explain this puzzle in The Time Bind: When Work Becomes Home s Home Becomes Work. She portrays the modern workplace as carefully engineered to be friendly, relaxed, supportive, appreciative …

Legal Design And The Evolution Of Commercial Norms, Jody S. Kraus

Faculty Scholarship

The Uniform Commercial Code determines the content of most commercial law default rules by incorporating common merchant practices. The success of this incorporation strategy depends on the likely efficiency of evolved commercial practices. In this Article, I use the best available theory of cultural evolution to analyze how and why commercial practices evolve. This analysis confirms that the incorporation strategy is far superior to a system in which lawmakers rely predominantly on individual analysis and experimentation to design commercial law. But the analysis also demonstrates that common commercial practices, and the laws incorporating them, are unlikely to be optimal, in …

Feminism, Law, And Bioethics, Karen H. Rothenberg

Faculty Scholarship

Feminist legal theory provides a healthy skepticism toward legal doctrine and insists that we reexamine even formally gender-neutral rules to uncover problematic assumptions behind them. The article first outlines feminist legal theory from the perspectives of liberal, cultural, and radical feminism. Examples of how each theory influences legal practice, case law, and legislation are highlighted. Each perspective is then applied to a contemporary bioethical issue, egg donation. Following a brief discussion of the common themes shared by feminist jurisprudence, the article incorporates a narrative reflecting on the integration of the common feminist themes in the context of the passage of …

The System Worked: Our Schizophrenic Stance On Welfare, Robert L. Tsai

Faculty Scholarship

This is a review of Steven M. Teles's book, Whose Welfare? AFDC and Elite Politics (University Press of Kansas, 1996), which argues that welfare policy reflects a dynamic of elite dissensus, in which public policy fails to reflect popular opinion. I make two central points in the review: first, there are reasons to believe that welfare policy does, in fact, reflect a deeply conflicted American electorate; and second, such a conflict may reveal a healthy deliberative order struggling to reconcile changing priorities with enduring values.

Colloquium - Gender, Law And Health Care: New Perspectives For Teaching And Scholarship: The Role Of Gender In Law And Health Care, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Recovery For Economic Loss Following The Exxon Valdez Oil Spill, Victor P. Goldberg

Faculty Scholarship

The physical cleanup following one of the worst oil spills in history, that of the Exxon Valdez, is done. The legal cleanup, however, has barely begun. Over 100 law firms participating in over 200 suits in federal and state courts involving more than 30,000 claims are presently engaged in litigation. Fishermen, cannery workers, fishing lodges, tour boat operators, oil companies whose shipments were delayed, and even California motorists facing higher gasoline prices have filed claims against Exxon and its fellow defendants.

Most claimants face a formidable roadblock, the so-called Robins doctrine. Under Robins Dry Dock & Repair Co. v. Flint …

Remembering Jefferson, Paul D. Carrington

Faculty Scholarship

No abstract provided.

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Recovery For Pure Economic Loss In Tort: Another Look At Robins Dry Dock V. Flint, Victor P. Goldberg

Faculty Scholarship

In Robins Dry Dock and Repair Co. v. Flint, the Supreme Court laid down the general proposition that claims for pure economic loss are not recoverable in tort. Although courts have sometimes ignored or distinguished Robins, its holding is still a central feature of tort law. In a recent en bane decision regarding claims by those injured by a chemical spill in the Mississippi River, the Fifth Circuit engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law.

The Robins rule is overbroad, lumping together a number of …

Seasoned To The Use, Carol Sanger

Faculty Scholarship

Two recent novels, Presumed Innocent and The Good Mother, have more in common than critical success, longevity on best-seller lists and big-name movie adaptations. Both books are about law: Presumed Innocent is a tale of murder in the big city; The Good Mother is the story of a custody fight over a little girl. Central characters in both books are lawyers. Turow is a lawyer, and Miller thanks lawyers. While the books could be classified in other ways – Presumed Innocent as mystery, The Good Mother as women's fiction – each meets a suggested genre specification of a legal novel: …

Accountable Accountants: Is Third-Party Liability Necessary?, Victor P. Goldberg

Faculty Scholarship

Should accountants be liable to third parties if they conduct an audit in negligent manner? A half century ago, in Ultramares Corporation v. Touche, Niven & Co., Cardozo argued that they should not, unless their performance could be characterized as fraud. In recent years, courts in a minority of jurisdictions have concluded that Cardozo's argument is no longer compelling and they have found that "foreseeable" third parties could bring a tort action for ordinary negligence against the accountants. In addition to being subject to tort actions, accountants may also be liable under federal and state securities laws.

Suits against …

Legal Fiction, James Boyle

Faculty Scholarship

No abstract provided.

Are We A Nation Of Tax Cheaters? New Econometric Evidence On Tax Compliance, Jeffrey A. Dubin, Michael J. Graetz, Louis L. Wilde

Faculty Scholarship

In 1982, then Commissioner of Internal Revenue Roscoe Egger reported to Congress that legal sector noncompliance with the Federal Income Tax statutes generated an "income tax gap" of $81 billion in 1981, up from $29 billion in 1973. He further projected a gap of $120 billion for 1985 (U.S. Congress, 1982). Perceptions of accelerating noncompliance inspired a crisis mentality within the Internal Revenue Service, Congress, and the tax bar.

The IRS responded in part by funding a major independent study of tax noncompliance via the National Academy of Sciences, and the American Bar Foundation initiated an investigation of its own …

Taking Kawashima Seriously: A Review Of Japanese Research On Japanese Legal Consciousness And Disputing Behavior, Setsuo Miyazawa

Faculty Scholarship

This paper discusses Japanese research on legal consciousness (ho-ishiki) and civil disputing. The author presents a recent explication of Takeyoshi Kawashima's concept of legal consciousness as a cultural factor and also proposes to explore the possibility of treating it as an individual, attitudinal factor. He also reviews large-scale surveys of aggregate-level culture and studies on individual-level disputing behavior. The need and possibility of a longitudinal study of individual disputing behavior that uses individual-level attitudes and regional culture as explanatory variables is suggested.

The Connection Between Law And Morality: Comments On Dworkin, David B. Lyons

Faculty Scholarship

Our discussions yesterday seemed haunted by a contrast--never quite formulated--between Natural Law and Legal Positivism. The standard interpretation turns on the idea of a "necessary connection" between law and morality. Positivism has often been understood to hold, and Natural Law to deny, that there can be unjust laws.

Trespass, Nuisance, And The Costs Of Determining Property Rights, Thomas W. Merrill

Faculty Scholarship

The right to exclude intrusions by others, we have it on high authority, is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Yet the right to exclude is not one right; it is itself a collection or "bundle" of rights. With respect to property in land, for example, the right to exclude depends to a large extent on whether the intrusion in question is subject to the common law of trespass or of nuisance. Generally speaking, when the intrusion is governed by trespass, then there is no exception for de minimis …