Law Commons^™

Separation And Schools, Kent Greenawalt

Faculty Scholarship

In commenting on these rich papers by Michel Troper and Michael McConnell, I first analyze the implications of legal and political theory for religious liberty and separation of church and state. I then turn to underlying premises of modern liberal theory about moral education and tolerance among citizens. Lastly, I concentrate on separation as it affects the schooling of children. Despite Professor Troper's emphasis on the uniqueness of French understanding and history, I was struck by how closely French problems about schooling, and their possible resolutions, resemble those in the United States.

The Direction Of Corporate Law: The Scholars' Perspective, John C. Coffee Jr., Richard A. Booth, R. Franklin Balotti, David C. Mcbride, Edward P. Welch

Faculty Scholarship

MR. BALOTTI: Good afternoon. My name is Frank Balotti and I've been asked to be the moderator for this afternoon's program. And one of the privileges that I get is to introduce the panel and to call them up to speak in some kind of order, I hope. And I hope that you and the audience will participate by asking questions towards the end of our panel and get involved in the discussion which we hope to promote.

The topic for this afternoon's panel is a scholar's approach to corporation law. And we are fortunate to have some scholars with …

Ratcheting Labor Standards: Regulation For Continuous Improvement In The Global Workplace, Charles F. Sabel, Dara O'Rourke, Archon Fung

Faculty Scholarship

It is a brute fact of contemporary globalization – unmistakable as activists and journalists catalog scandal after scandal – that the very transformations making possible higher quality, cheaper products often lead to unacceptable conditions of work: brutal use of child labor, dangerous environments, punishingly long days, starvation wages, discrimination, suppression of expression and association. In all quarters, the question is not whether to address these conditions, but how.

That question, however, admits no easy answers. Globalization itself has freed capital from many of its former constraints – national workplace standards, collective bargaining, and supervisory state agencies and courts – designed …

Are Mental States Relevant For Statutory And Constitutional Interpretation, Kent Greenawalt

Faculty Scholarship

Judges in the United States must interpret statutes and constitutions. Largely because these texts are framed in the English language, a language shared by legislators, judges, and other citizens, judges employ sufficiently common techniques to sustain a coherent practice. Lawyers can often say with some confidence how judges will construe particular legal provisions, and, when they have serious doubts, they can sketch the likely alternatives. But we are now in an era of sharp theoretical disagreement over what judges do when they interpret authoritative texts.

In difficult cases of statutory interpretation, are judges mainly trying to give language its ordinary …

The Nature And Function Of Criminal Theory, George P. Fletcher

Faculty Scholarship

The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment; the theory of justification and of excuse, that is, of wrongdoing and responsibility; the relevance of consequences to the gravity of offenses (the problem of moral luck); and the …

Kosovo And The Great Air Power Debate, Daniel L. Byman, Matthew C. Waxman

Faculty Scholarship

The following section provides an overview of how to think about air power and coercion, addressing several key limits of the current literature. We next examine NATO goals in Kosovo and the mixed success eventually achieved. Using that baseline, we explore various explanations for Belgrade's eventual capitulation and clarify how air power's role in each of them should be understood; we leave aside the issue of whether coercion was a proper strategy for addressing the Balkan crisis and focus instead on how to assess air power as a tool of that strategy. We conclude with recommendations for recasting the air …

A Legal Giant Is Dead, Henry Paul Monaghan

Faculty Scholarship

Herbert Wechsler died at his home on April 26, 2000. Two days later, the New York Times obituary's headline announced the passing of a "legal giant," a richly merited appellation. Herbert Wechsler was, I believe, the greatest academic figure in the history of Columbia Law School. At the height of his career, Herb stood at the top of three academic fields: criminal law, constitutional law, and federal jurisdiction. His achievements were, moreover, not confined to Columbia, the faculty of which he joined in 1933 after having served as law clerk to Justice Harlan Fiske Stone. From 1944 to 1946, Herb …

The Political Parties And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

Recent campaign finance innovations of the major political parties have blown large and widening holes in federal campaign finance regulation. The relationship between parties and candidates also challenges the basic doctrinal categories of campaign finance law. The Constitution permits regulation of campaign finances to deal with the danger of corruption. But some judges and commentators have argued that the parties present no danger of corruption. This Article finds that, although parties play a positive role in funding campaigns, certain party practices raise the specter of corruption in the constitutional sense. Moreover, due to the close connection between parties and candidates, …

An Institutional Emphasis, Lance Liebman

Faculty Scholarship

Professor Schwartz is an important scholar of the interface between the difficult moral concept of privacy and the new information technologies. Someday a book will tell the story of modem history through the lens of privacy: village lives well known to neighbors; the claims of the national state (taxes, military service); the social welfare state; and the possibilities and dangers of modem biology. As Paul Schwartz has written, DNA and other tools can tell us a great deal about ourselves and can improve our lives; they can also tell employers, drug companies, prospective in-laws, and the police things we prefer …

Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman

Faculty Scholarship

The Independent Counsel (IC) statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr.

Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end, bringing criminal charges against people believed to have information …

Corporate Governance Lessons From Russian Enterprise Fiascoes, Merritt B. Fox, Michael A. Heller

Faculty Scholarship

This Article draws on a rich array of deviant behavior in Russian enterprises to craft lessons for corporate governance theory. First, Professors Fox and Heller define corporate governance by looking to the economic functions of the firm. Based on this definition, they develop a typology that comprehensively shows all the channels through which bad corporate governance can inflict damage on a country's real economy. Second, they explain the causes of Russian enterprise fiascoes by looking to the particular initial conditions prevailing at privatization – untenable firm boundaries and insider allocation of firm shares – and the bargaining dynamics that have …

A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West

Faculty Scholarship

There is a growing bipartisan consensus that flaws in America's death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don't belong there. Others say capital appeals take too long. This report – the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995) – suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught …

The Case For Formalism In Relational Contract, Robert E. Scott

Faculty Scholarship

The distinguished scholars who gathered last year to honor Ian Macneil and to reflect on his contributions to the understanding of contract and contract law represent diverse methodologies, and they approach the vexing problems raised by relational contracts from different normative perspectives. But on one point, I daresay, they all agree: the central task in developing a plausible normative theory of contract law is to specify the appropriate role of the state in regulating incomplete contracts. Complete contracts (to the extent that they exist in the real world) are rarely, if ever, breached since by definition the payoffs for every …

A Theory Of Legal Presumptions, Antonio E. Bernardo, Eric L. Talley, Ivo Welch

Faculty Scholarship

This article analyzes how legal presumptions can mediate between costly litigation and ex ante incentives. We augment a moral hazard model with a redistributional litigation game in which a presumption parameterizes how a court 'weighs' evidence offered by the opposing sides. Strong prodefendant presumptions foreclose lawsuits altogether, but also engender shirking. Strong proplaintiff presumptions have the opposite effects. Moderate presumptions give rise to equilibria in which both shirking and suit occur probabilisitically. The socially optimal presumption trades off agency costs against litigation costs, and could be either strong or moderate, depending on the social importance of effort, the costs of …

Personal Harms And Political Inequities, Suzanne B. Goldberg

Faculty Scholarship

When we think back to where the legal battle for gender equality and the rights of gay people stood a century ago, we see that, in fact, there was not much of a battle. Indeed, advocates for change were seldom triumphant. A survey in 1900 would have shown that American women were twenty years away from obtaining the right to vote, were unfit to be lawyers according to the U.S. Supreme Court, and were nowhere near being eligible-let alone required-to serve on juries. The survey would also have revealed a wide-ranging web of federal and state laws and policies that …

Introduction: The European Union As An International Actor, Petros C. Mavroidis

Faculty Scholarship

The notorious ERTA decision by the European Court of Justice (ECJ), if viewed from a federalist perspective independently of its legal merits, represents an equilibrium: the quantity of the sovereignty transferred from European Community (EC) Member States to the Community at the internal (intra-EC) level equals the quantity of sovereignty that the Community can exercise on behalf of the EC Member States on the international scene.

The ECJ's Opinion 1/94 casts some doubt upon this statement by restrictively interpreting the Community competence with respect to international trade negotiations. Opinion 1/94, however, is not a drastic departure from the ERTA case …

The Clinton Administration And War Powers, Lori Fisler Damrosch

Faculty Scholarship

The strongest of all governmental powers is the power to engage in war; and the strongest challenge for constitutionalism is to bring the war power of the state under meaningful control. The 1787 Constitution allocated some military powers to the Congress and others to the President as part of the scheme of constitutional checks and balances. To this day, however, the distribution of authority between the branches remains contested and uncertain.

The Clinton Administration has had substantial opportunity to contribute to the evolution of constitutional practice concerning war powers, by virtue of numerous occasions of combat deployments, cruise missile strikes, …

Consultants' And Lawyers' Duties To Report Contamination, Michael B. Gerrard

Faculty Scholarship

A recent decision by the New York State Department of Environmental Conservation (DEC) expands the duty of environmental consultants to report contamination on their clients' land. The rationale of the decision might also apply to lawyers and to states beyond New York.

Many federal, state and municipal laws require spills of pollutants to be reported to the government. People have received criminal penalties, including jail time, as well as heavy civil fines, for violating some of these requirements. Almost all of these rules apply only to persons who own, operate, or are otherwise in charge of the polluting facility, or …

Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard

Faculty Scholarship

The boom times for environmental lawyers were the late 1980s and the early 1990s. The June 1990 issue of Money magazine called environmental law a "fast-track career." Two or three years of experience with the U.S. Environmental Protection Agency (EPA), a state environmental agency, the environmental units of the Justice Department, or a state attorney general's office were a ticket to a high-paying job in the private sector. Law students were clamoring to enter the field and law firms were scrambling to find experienced environmental lawyers, or to recycle newly underemployed antitrust lawyers into this burgeoning field.

How Persuasive Is Natural Law Theory?, Kent Greenawalt

Faculty Scholarship

This Article, in honor of John Finnis, evaluates the persuasiveness of one central element of natural law theory – its claim to an objective moral truth discoverable by reason. Although I stand outside the tradition, my interest in natural law theory goes back to my college days. John Finnis, especially in his work Natural Law and Natural Rights, has much enriched my understanding of moral, political, and legal philosophy. Prior to that book, natural lawyers and analytic jurists had little to say to each other; by and large, the members of each group had scant respect for the scholarly endeavors …

The Limits Of Behavioral Theories Of Law And Social Norms, Robert E. Scott

Faculty Scholarship

The law influences the behavior of its citizens in various ways. Well understood are the direct effects of legal rules. By imposing sanctions or granting subsidies, the law either expands or contracts the horizon of opportunities within which individuals can satisfy their preferences. In this way, society can give incentives for desirable behavior. The direct effects of legal rules on individual behavior have been a fruitful source of inquiry for analysts using the techniques of law and economics. Modeling the incentive effects of legal rules provides a useful predictive tool for positive theory and normative critique. Indeed, the tools of …

The Challenges Of Globally Accessible Process, Peter L. Strauss

Faculty Scholarship

This chapter embraces the strategic use of the Internet for achieving new forms of transparency and participation in the regulatory cooperation process. It explores ‘the challenges of globally accessible process’ through the use of new information technologies. It holds that the incorporation of these technologies in agency processes at the US federal level has created possibilities for the most transparent, participatory, and broadly deliberative regulatory system in the world to become still more so. The Internet promises not merely to expand access to information about the substance and process of regulation, but also to ‘move the government closer to the …

Patterns Of Legal Change: Shareholder And Creditor Rights In Transition Economies, Katharina Pistor

Faculty Scholarship

This paper analyses changes in the legal protection of shareholder and creditor rights in 24 transition economies from 1990 to 1998. It documents differences in the initial conditions and a tendency towards convergence of formal legal rules as the result of extensive legal reforms. Convergence seems to be primarily the result of foreign technical assistance programs as well as of harmonisation requirements for countries wishing to join the European Union. The external supply of legal rules not withstanding, the pattern of legal reforms suggests that law reform has been primarily responsive, or lagging, rather than leading economic development. In comparison, …

Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip Genty

Faculty Scholarship

After almost 12 years in law teaching, I approached my first sabbatical with a single goal: to free myself from cases. At that time my clinic clients were primarily parents who were involved in family court proceedings in which they were trying to preserve their parental rights and get their children out of the foster care system. Such cases are emotionally draining for both the client and the lawyer. Thus, while I welcomed the chance to have a semester off from teaching and attending faculty and committee meetings, I felt that I needed a break from the demands of lawyering …

Three Issues For The City In The 21st Century, Richard Briffault

Faculty Scholarship

The title for this year’s program of the Section on Urban, State and Local Government Law of the Association of American Law Schools is The City in the 21st Century. These three articles provide a stimulating introduction to three issues that are likely to be central to the study of the city in the twenty-first century-as they were in the twentieth century and in the nineteenth century: the interplay of local and regional forces in land development, the battles among interest groups to control city hall, and the role of local government in promoting local economic development. These issues are …

The Role Of Strategic Management Planning In Improving The Representation Of Clients: A Child Advocacy Example, Jane M. Spinak

Faculty Scholarship

This article will discuss my experience managing a legal organization representing children – the Juvenile Rights Division (JRD) that Schinitsky began thirty-eight years ago – by exploring the interactive role that organizational management plays in enhancing the quality of child client representation. Part I briefly examines two issues: the historic and systemic context of court-based practice within JRD and the way in which changes in child welfare law and policies since 1979 have affected the ability of lawyers to represent child clients through this court-based practice. Part II presents a model for restructuring organizational conventions and patterns in order to …

The Constitutionality Of Copyright Term Extension: How Long Is Too Long, Jane C. Ginsburg, Wendy J. Gordon, Arthur R. Miller, William F. Patry

Faculty Scholarship

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.

This panel will try to determine, on the great continuum of limited times that the Constitution prescribes for copyright in Article I, Section 8, Clause 8, the term of protection that Congress has actually fixed. In other words: How long is too long? Sonny's bill establishes a term of protection of life plus seventy years for individual authors for works created on or after January 1, 1978. The bill retroactively …

Making History: Israeli Law And Historical Reconstruction, Eben Moglen

Faculty Scholarship

As Asher Maoz insightfully points out, governmental involvement in the ascertainment of historical truth – whether in court, by commission of inquiry, or in other ways – is directed at securing approval of a particular historical narrative, as a step toward imposing that narrative, to a greater or lesser extent, on those who disagree with it. This "official version" exists not only for the sorts of questions presented by the cases Maoz discusses, but also with respect to auto accidents, crimes of passion, and all the other historical reconstructions that form the substrate of "facts" upon which legal conclusions and …

The Election Of Thomas Buergenthal To The International Court Of Justice, Lori Fisler Damrosch

Faculty Scholarship

For the first time since 1981, a new judge of United States nationality has taken office at the International Court of Justice. As the method for selection of this important judicial post is little known even within the international law profession, a brief note on how that process unfolded in 1999-2000 should be of interest to the Court's constituency.

Milton Handler: Teacher, Lance Liebman

Faculty Scholarship

I did not know Milton Handler until he was eighty-eight years old.Of course I knew of him. I had lived near the world of Philip Areeda and Steve Breyer, antitrust experts who knew very well that Milton had begun the study of competition law; had been in that founding generation of activist law scholars who implemented the realist vision by expanding the canon of common law courses – contracts, torts, property – to statutory and regulatory fields such as taxation, regulated industries, labor law, and corporations.