Law Commons^™

Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen

Faculty Scholarship

The subject matter we are going to talk about is variously named and thewords have some resonances of importance. I am going to use the phrase "Free Software" to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally.

My purpose this …

The Future Of American Sentencing: A National Roundtable On Blakely, Ronald J. Allen, Albert Alschuler, Douglas A. Berman, Stephanos Bibas, Frank O. Bowman Iii, Daniel P. Blank, Charles R. Breyer, Steven Chanenson, Michael R. Dreeben, Margareth Etienne, Jeffrey L. Fisher, Patrick Keenan, Joseph E. Kennedy, Nancy J. King, Susan J. Klein, Rory K. Little, Marc L. Miller, J. Bradley O'Connell, David Porter, Kevin R. Reitz, Daniel C. Richman, Kate Stith, Barbara Tombs, Richard B. Walker, Robert Weisberg, Robert F. Wright Jr., Jonathan Wroblewski, David N. Yellen

Faculty Scholarship

In the wake of the dramatic Supreme Court decision in Blakely v. Washington, Stanford Law School convened an assembly of the most eminent academic and professional sentencing experts in the country to jointly assess the meaning of the decision and its implications for federal and state sentencing reform. The event took place on October 8 and 9, just a few months after Blakely came down and the very week that the Supreme Court heard the arguments in United States v. Booker and United States v. Fanfan, the cases that will test Blakely's application to the Federal Sentencing Guidelines. Thus the …

The Alien Tort Statute, Civil Society, And Corporate Responsibility, Sarah H. Cleveland

Faculty Scholarship

The topic of this panel is civil participation in the global trading system, with a particular focus on Doe v. Unocal Corp. and use of the Alien Tort Statute (ATS) to enforce fundamental human rights norms against multinational corporations. These comments will therefore attempt to locate Doe v. Unocal and other ATS litigation in the broader efforts of civil society to establish and maintain normative principles for corporate responsibility in the global trading regime. This comment first explains the role of ATS litigation in the broader civil society context and the contribution of ATS cases to the development and enforcement …

Agora: The United States Constitution And International Law: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

On the docket of the United States Supreme Court in 2004 is a substantial cluster of cases at the intersection of constitutional and international law. In the previous two Supreme Court Terms, the Court had adverted to sources of law and practice outside the United States, in its treatment of constitutional claims involving the death penalty and same-sex relationships. The apparent willingness of the Court to consider international and foreign authorities in reaching its conclusions on contested issues of constitutional law has raised to new prominence the debate over the relationship between constitutional and international law. It is not yet …

Oscar Schachter (1915-2003), Lori Fisler Damrosch

Faculty Scholarship

Among ''jurisconsults of recognized competence in international law" and "most highly qualified publicists of the various nations, " no one in the second half of the twentieth century did more than Oscar Schachter to influence both the theory and the practice of international law, especially the law of the United Nations Charter. When the centennial of the American Society of International Law arrives in two years, we will have occasion to reflect on his contributions to this Journal and many other endeavors of the Society, across a long and vigorous life.

Credit Card Policy In A Globalized World, Ronald J. Mann

Faculty Scholarship

This paper relies on data from countries around the world to present a comprehensive analysis of policy issues related to credit cards. The first part discusses the rise of credit cards and debit cards and how their uses differ from country to country. It closes with a framework for explaining why cards are more and less successful in different countries, focusing in large part on the ready availability of detailed consumer credit information. The second part considers the relation between credit card use and bankruptcy. Relying on a time series of data from the United States, Canada, Great Britain and …

Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss

Faculty Scholarship

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen …

Measuring Share Price Accuracy, Merritt B. Fox

Faculty Scholarship

This Article concerns how to measure share price accuracy. It is prompted by the fact that many scholars believe that the prices established in the stock market affect the efficiency of the real economy. In their view, more accurate prices increase the amount of value added by capital-utilizing enterprises as these enterprises use society's scarce resources for the production of goods and services. More accurate share prices help improve both the quality of choice among new proposed investment projects in the economy and the operation of existing real assets currently in corporate hands.

The proposition that more accurate share prices …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance," "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of …

The Poison Pill In Japan: The Missing Infrastructure, Ronald J. Gilson

Faculty Scholarship

The coming of hostile takeovers to Japan has been anticipated, and anticipated, and anticipated. Each report of a reduction in the size of crossholdings among Japanese companies and in the size of Japanese bank stockholdings in their clients has given rise to an expectation that now, at last, hostile offers would emerge. It is not surprising that commentators looked forward, optimistically, to the arrival of a potentially disruptive takeover technique. The extended Japanese recession, together with management resistance to internally implemented restructurings and the barriers to externally imposed restructurings, has created the potential for substantial private and social gain from …

Global Credit Card Use And Debt: Policy Issues And Regulatory Responses, Ronald J. Mann

Faculty Scholarship

The rise of card-based payments has transformed the landscape of payments in the last half century, from one dominated by government-supported paper-based payments to one dominated by wholly private systems. The rise of those payments presents a number of policy problems, the most serious of which is the empirically demonstrable likelihood that use of the cards here and elsewhere contributes to an undue level of consumer credit and that borrowing on the cards contributes to a rise in the level of consumer bankruptcy. Because increasing financial distress imposes substantial externalities on the economies in which it occurs, the global rise …

Scrubbing The Wash Sale Rules, David M. Schizer

Faculty Scholarship

Loss limitations are an ugly but inevitable feature of any realization-based income tax. In essence, because the system mismeasures gains, it also has to mismeasure losses. Otherwise, the "timing option" inherent in the realization rule would allow taxpayers to defer gains (thereby reducing the tax's present value) while accelerating losses (thereby preserving the deduction's present value). This "strategic trading" would erode the tax on risky positions, leading to inefficiencies as taxpayers developed a taste for risky positions, became "locked in" to appreciated positions, and sold loss positions they otherwise would keep. Distributional issues also would arise as the effective tax …

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded …

Reading Clarence Thomas, Kendall Thomas

Faculty Scholarship

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs. In the second …

The Case For Tradable Remedies In Wto Dispute Settlement, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

In response to concerns over the efficacy of the WTO dispute settlement system, especially in regard to its use by developing countries, Mexico has tabled a proposal to introduce tradable remedies within the Dispute Settlement Understanding. The idea is that a country that has won cause before the WTO, and who is facing non-implementation by the author of the illegal act but feels that its own capacity to exercise its right to impose countermeasures is unlikely to lead to compliance, can auction off that right. The attractiveness of this idea is that it offers an additional possibility to injured WTO …

Reappraising T.L.O.'S Special Needs Doctrine In An Era Of School-Law Enforcement Entanglement, Joshua Gupta-Kagan

Faculty Scholarship

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the nearly twenty-year old case, New Jersey v. T.L.O. to most school searches. T.L.O. established a lower standard for searches of students by school officials, but it explicitly did not decide what standard the government must meet to justify school searches performed by police officers, creating a doctrinal starting point for advocates to raise challenges to searches involving police. More fundamentally, the T.L.O. Court based its decision on the presumption that firm gates separate public school …

Panel Three: Introduction, Suzanne B. Goldberg

Faculty Scholarship

I think some of my colleagues will ask questions about these cases, to ask who is a man or woman, but if the question is legally, what is male or female, and if you think about the questions that you've read, say, in common law out of the Supreme Court – and I'll just talk about discrimination cases, although I think you can talk about other ones, too – think about the sex discrimination cases. The struggle is about, what is discrimination, but the Court in Craig v. Born is talking about different control restrictions for men and women. Or …

Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman

Faculty Scholarship

Elsewhere Garrett and Liebman have recounted that though James Madison is considered "the Father of the Constitution," his progeny disappointed him because it was defenseless against self-government's "mortal disease " – the oppression of minorities by local majorities – because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment's Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered "effectual." This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity …

Treaties And International Regulation, Lori Fisler Damrosch

Faculty Scholarship

The authority of Missouri v. Holland is in no way impaired by developments of the last decade. While Justice Holmes rejected the view that "invisible radiation" from the Tenth Amendment could restrict the treaty power, his approach accepts that a treaty cannot violate "prohibitory words" in the Constitution. Some prohibitory words explicitly protect the interests of the states as against the national government. For example, the framers clearly meant the prohibition in Article I, section 9 on export taxes to bar one form of potential federal taxation that the Southern states found worrisome. In the face of this specific prohibition, …

Home Rule For The Twenty-First Century, Richard Briffault

Faculty Scholarship

At this point, four years into the new century, most readers must be tired of the invocation of the "twenty-first century" in law review articles. Yet, "the twenty-first century" in the title of this article is significant. The home rule idea first entered American law in the nineteenth century, an era with different forms of urban political, social, and economic organization, and a different role for local government. As the nature of urban development and the role of local government changes, home rule must change with it.

Home rule is a complex topic. Home rule takes many legal forms and …

Just Monogamy?, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift state and federal prohibitions on same-sex marriage have inspired people across the political spectrum to speak about the virtues of monogamy’s core institution and to express views on who should be included within it. In this brief comment, I want to talk about something else. Like an “unmannerly wedding guest,” I want to invite the reader to pause amidst the whirlwind of marriage talk, to think about alternatives to monogamy. In particular, I want to talk about multiparty relationships, or “polyamory,” as these relationships are called …

Crime, Law, And The Community: Dynamics Of Incarceration In New York City, Jeffrey A. Fagan

Faculty Scholarship

Random Family (LeBlanc 2003) tells the story of a tangled family and social network of young people in New York City in which prison threads through their lives since childhood. Early on, we meet a young man named Cesar, who sold small amounts of crack and heroin in the streets near his home in the Bronx. During one of his many spells in jail, Cesar sees his father pushing a cafeteria cart in the Rikers Island Correctional Facility, New York City’s jail. Cesar had not seen his father in many years, but he was not very surprised to see him …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

I am honoured to contribute to this Festschrift for Bill Cornish, the leading exponent of the English (even if many of them are in fact Anzacs) School of Copyright and Intellectual Property. In addition to greatly valuing his scholarship, I hold Bill in especial esteem for his unswerving sanity in ALAI meetings, and for the piano duets in which he occasionally indulges my spouse. The following essay is offered in the spirit of international inquisitiveness that has animated so many of my contacts with Bill.

The Muddles Over Outsourcing, Jagdish N. Bhagwati, Arvind Panagariya, T.N. Srinivasan

Faculty Scholarship

In the early 1980s, “outsourcing” typically referred to the situation when firms expanded their purchases of manufactured physical inputs, like car companies that purchased window cranks and seat fabrics from outside the firm rather than making them inside. But in 2004, outsourcing took on a different meaning. It referred now to a specific segment of the growing international trade in services. This segment consists of arm’s-length, or what Bhagwati (1984) called “long-distance,” purchase of services abroad, principally, but not necessarily, via electronic mediums such as the telephone, fax and the Internet. Outsourcing can happen both though transactions by firms, like …

Remembering Oscar Schachter, Lori Fisler Damrosch

Faculty Scholarship

In this issue of the Columbia Law Review and also in the pages of journals that specialize in international and transnational law,' my colleagues and I celebrate the professional accomplishments of Oscar Schachter as a superlative scholar and public servant, as well as his qualities as a human being. Here, I will speak mainly in the personal rather than professional voice. One of the reasons I want to reminisce rather than eulogize is the very impossibility of putting the proper frame on the superlatives.

International Income Taxation, Michael Graetz

Faculty Scholarship

Much of what I will say here today is distilled from articles that I have written and things I have learned in putting together a book called Foundations of International Taxation.

It is difficult enough to fashion sensible tax policy in the domestic arena. The debate, for example, over whether the United States should impose a value-added tax has some international aspects, but it is primarily a debate about domestic policy. This is true generally about the debate over how much we should rely on income versus consumption taxation. This debate amply illustrates how hard it is to obtain agreement …

The Unfulfilled Promise Of Citizen Review, Debra A. Livingston

Faculty Scholarship

Once controversial, the idea that citizens should participate in the administrative review of complaints about police conduct is today widely accepted. Citizen review processes of one type or another can be found in about eighty percent of our largest cities. There are approximately 100 separate oversight agencies in this country and that number has been growing steadily for some time. Even as citizen review has become an accepted feature of the landscape in American policing, however, questions have been raised about just what citizen participation in complaint review is likely to achieve in terms of improving police and the relations …

Supplemental Environmental Projects Have Been Effectively Used In Citizen Suits To Deter Future Violations As Well As To Achieve Significant Additional Environmental Benefits, Edward Lloyd

Faculty Scholarship

Supplemental Environmental Projects (SUPs) are environmentally benefical projects included in settlements of environmental law enforcement cases. Courts have addressed SEPs in two contexts: where proposed by parties in consent decrees and where courts have fashioned SEPs as apart of the relief ordered in an enforcement case. SEPs have been extensively used in both government and citizen enforcement cases despite the nearly universal absence of any explicit legislative authorization by Congress. Congress has tangentially recognized the place of SEPs in the penalty and deterrence scheme by giving the Administrator of the United States Environmental Protection Agency (EPA) and the Attorney General …

Information Costs In Patent And Copyright, Clarisa Long

Faculty Scholarship

Why do we have more than one form of intellectual property rights? Why are the structures of the patent and copyright forms so different? What determines the optimal structure of each form? The conventional theory of intellectual property rights posits that such rights exist to stimulate the creation and distribution of intellectual goods.1 Alternatively, theories of personhood justify intellectual property rights on the grounds that they protect objects through which authors and inventors have expressed their “wills,” which is central to self-definition and personhood, or that they create social conditions supportive of creative intellectual activity, which in turn is conducive …