Law Commons^™

Justice Harlan's Conservatism And Altenative Possibilities, Kent Greenawalt

Faculty Scholarship

Bruce Ackerman and Charles Fried's rich essays address the subject of Justice Harlan as a conservative. One who comes to this topic has in mind questions like: Was Justice Harlan a conservative? If so, what kind of a conservative was he? How did his judicial actions exemplify a conservative approach? Most importantly, is his conservatism an appealing model for modern judicial practice?

Professors Ackerman and Fried's slices on this topic reflect their own casts of mind and philosophies of judging. Fried looks at a broad range of Justice Harlan's opinions and sets them against particular conservative qualities that Fried commends. …

When The Judge Is Not The Primary Official With Responsibility To Read: Agency Interpretation And The Problem Of Legislative History, Peter L. Strauss

Faculty Scholarship

As the other pages of this journal reflect, writing about statutory interpretation commonly builds on unarticulated assumptions about the occasion for interpretation, the identity of the interpreter, and the character of the interpreted text. In this paradigm, the occasion for interpretation is a litigated case – an episode has occurred for which the application of the statute is problematic. The interpreter is a judge, a person who resolves litigation – typically episodic, typically backwards – working outside of politics, and bearing no generic responsibility (that is, responsibility outside the decision of the case before her) for the statutory regime. And …

Our Localism: Part Ii – Localism And Legal Theory, Richard Briffault

Faculty Scholarship

A central theme in the literature of local government law is that local governments are powerless, incapable of initiating programs on behalf of their citizens or of resisting intrusions by the state. How can scholars make this claim when under state legislation and federal and state judicial decisions local autonomy plays a critical role in the law of school finance, land-use regulation and local government formation and preservation? As we have seen, a partial response turns on the varying assessments of the nature of power. But much of the answer also has to do with differing assumptions about the underlying …

Learned Hand And The Self-Government Theory Of The First Amendment: Masses Publishing Co. V. Patten, Vincent A. Blasi

Faculty Scholarship

Sitting as a federal district judge in the case of Masses Publishing Co. v. Patten, Learned Hand was called upon to interpret the Espionage Act of 1917 just six weeks after its passage. The Act was potentially the most speech-restrictive piece of federal legislation since the Alien and Sedition Acts of 1798. Judge Hand recognized this and ruled that the terms of the Act must be construed in light of the first amendment. He defined the limits of legally protected war criticism, and presumably of political advocacy generally, according to a test that makes the crucial consideration the content of …

Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt

Faculty Scholarship

Let me start by putting my topic in a concrete context. Suppose a statute is offered to relieve animals of the oppressively cramped conditions of modern factory farming. Advocates claim that calves, lambs, pigs, and chickens should have a better quality of life before being slaughtered for food. Opponents argue that factory farming helps provide tasty, inexpensive meat and that farmers should be free to decide how to treat animals that they own. At stake in the decision whether to restrict farmers is some balancing of animal interests against human interests. In our relatively wealthy society the human interests are …

How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch

Faculty Scholarship

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …

A Conceptual, Practical, And Political Guide To Rico Reform, Gerard E. Lynch

Faculty Scholarship

RICO is nearing its twentieth birthday, but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes.

As the pressure for change has intensified, and …

The International Trading System, Jagdish N. Bhagwati

Faculty Scholarship

The 25th Anniversary of the founding of UNCTAD is an occasion to remember, not for its failures, which it shares inevitably with every international organization that is set up to address complex economic issues that concern developing countries with diverse constraints and objectives, but for its successes, which have been unduly neglected.

Here, I shall recount only three of the many intellectual accomplishments focusing on the early lead that UNCTAD has provided on questions that have attracted academic attention and invited policy redress in national and international fora.

The World Trading System: Law And Policy Of International Economic Relations, Lori Fisler Damrosch

Faculty Scholarship

This book serves an important need by providing a clear overview of an increasingly complex subject. The author, a leading figure in international trade law, has distilled his accumulated wisdom into an accessible account of the major features of the world trading system. His intended audience includes not only lawyers, but political scientists, economists, government officials and others as well. While he acknowledges that his own "comparative advantage" is in the legal aspects of the field (p. 6), he places the legal concepts in their political and economic context to write a treatment that will be enlightening to readers from …

How Law Can Be Determinate, Kent Greenawalt

Faculty Scholarship

This Article, part of a longer study, considers one problem about the objectivity of law. The problem is whether the law as it exists provides determinate answers to many legal questions for judges, other officials, and citizens. I emphasize the word many. This Article does not focus on "hard cases" and then ask whether single correct answers for them exist. It does not inquire whether in some complicated sense all legal questions have determinate answers. This is a treatment of easy legal questions. To most lawyers, it may seem self-evident that many legal questions do have determinate answers; and that …

The Perceived Authority Of Law In Judging Constitutional Cases, Kent Greenawalt

Faculty Scholarship

The purpose of this conference is a dialogue between scholars and judges about judging. Because judges have many opportunities to read what scholars think, and scholars don't very often have this kind of chance to hear judges reflect on their own experiences and perspectives, I expect the main benefit to go to us scholars. However, for many questions of jurisprudential interest, figuring out what relevance different judicial experiences might have is complicated, and extensive discussion may be necessary to learn what really matters.

I shall focus on a question that has lain at. the center of jurisprudential discussion in the …

The Strategic Structure Of Offer And Acceptance: Game Theory And The Law Of Contract Formation, Avery W. Katz

Faculty Scholarship

The purpose of this article is to promote a particular research program; namely, the use of game theory to analyze the law of contract formation. Although I will often simply speak of offer and acceptance in my discussion, I mean to refer to a broader set of issues than are commonly denoted by this doctrinal label. My program transcends the narrow issue of whether particular communications technically should be classified as offers and acceptances, and includes questions often analyzed under the rubrics of implication and interpretation. At its broadest, my argument addresses all legal rules that answer two types of …

Harmless Error And The Valid Rule Requirement, Henry Paul Monaghan

Faculty Scholarship

Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless …

What Triggers Revlon?, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Delaware's new approach to takeover law is announced in three cases that address different aspects of management's role in the standard drama of defending against a hostile takeover. Unocal Corp. v. Mesa Petroleum Co. scripts a main act for the drama by prescribing a duty to compare the outsider's offer with the universe of other options and, if necessary, to resist the outsider within the guidelines fixed by the proportionality test. Moran v. Household International, Inc. writes a prologue by encouraging management to plan a vigorous defense that can thwart a coercive offer without damaging the company. Finally, Revlon …

Intoxication And Aggression, Jeffrey Fagan

Faculty Scholarship

Evidence of an association between use of illicit substances and aggressive behavior is pervasive. But the precise causal mechanisms by which aggression is influenced by intoxicants are still not well understood. Research on intoxication and aggression often has overlooked the nonviolent behavior of most substance users, controlled use of substances, and the evidence from other cultures of a weak or nonexistent relation between substance use and aggression. There is only limited evidence that ingestion of substances is a direct, pharmacological cause of aggression. The temporal order of substance use and aggression does not indicate a causal role for intoxicants. Research …

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

What's Next?: The Future Of Rico, G. Robert Blakey, John C. Coffee Jr., Paul E. Coffey, L. Gordon Crovitz

Faculty Scholarship

Opening Statement of Mr. Crovitz: Coming to the Notre Dame Law School to debate Robert Blakey on the Racketeer Influenced and Corrupt Organizations law makes me feel like Daniel approaching the lion's den. I'm tempted to offer my own prayer, "Yea, though I walk through the valley of the shadow of death, I will fear no RICO."

Women In The Aids Epidemic: A Portrait Of Unmet Needs, Arlene Zarembka, Katherine M. Franke

Faculty Scholarship

While rarely a month goes by that the topic of AIDS escapes discussion in the legal literature, a survey of legal publications reveals that the implications of AIDS for women has received scant treatment by legal commentators. Unfortunately, this neglect is not unique to the legal community, but reflects a larger societal disinterest in women with AIDS.

In fact, this epidemic looks quite different from the perspective of women. The medical, social, and legal needs of women affected by AIDS are in many ways needs that preexisted AIDS, but which have been magnified by the threat and implications of HIV …

Just Say No To Whom?, Ronald J. Gilson

Faculty Scholarship

"Just say no" is the current rallying cry of those seeking to give target management the unrestricted power to block hostile tender offers. Not surprisingly, the turn of phrase chosen by management leaves ambiguous the precise issue on which the debate should turn: To whom does management want the power to say no? As target management poses the issue, it wants to say no to a raider. The image is of stalwart management protecting shareholders against a marauding outsider. However, that image is seriously misleading. In fact, target management seeks the power to say no to its own shareholders.

The …

The Devolution Of The Legal Profession: A Demand Side Perspective, Ronald J. Gilson

Faculty Scholarship

Economic analysis has not played a significant role in the increasingly intense debate over the decline of professionalism among lawyers.Economists' lack of interest in the issue may be understandable. The lawyers' lament is that the legal profession is devolving into the business of law. That this concern has not captured the economists' attention may reflect only that economists do not view the label "business" as a pejorative. If becoming a business means efficiently rendering an important service in a competitive environment, then of what is there to complain?

Lawyers, more directly concerned with maintaining their professional status, would find little …

Wealth And Property, Thomas W. Merrill

Faculty Scholarship

Professor Stephen Munzer's study of property rights is an ambitious work. Drawing on sources as diverse as Hohfeld, Hegel, Locke, civic republicanism, Marx, the classic utilitarians, and Rawls, he seeks to develop a "pluralist" theory of property, one that synthesizes a variety of philosophical perspectives into a single "basic theory" that can be used to assess and promote the reform of different property systems. Like most attempts to achieve a grand philosophical synthesis, however, this one ultimately fails. The most obvious problem is that Munzer's basic theory is too vague and unwieldy to generate determinate answers to the kinds of …

Copyright In The 101st Congress: Commentary On The Visual Artists Rights Act And The Architectural Works Copyright Protection Act Of 1990, Jane C. Ginsburg

Faculty Scholarship

In the Visual Artists Rights Act, Congress has for the first time included moral rights within the U.S. copyright statute. Well-known in continental European copyright doctrine, and secured by the Berne Convention, moral rights afford protection for the author's personal, non-economic interests in receiving attribution for her work, and in preserving the work in the form in which it was created, even after its sale or licensing. These rights of attribution (sometimes infelicitously labeled the "right of paternity") and of integrity are conceptually distinct from the economic rights of exploitation set forth in section 106 of the 1976 Copyright Act. …

Insults And Epithets: Are They Protected Speech?, Kent Greenawalt

Faculty Scholarship

It is a privilege to offer a lecture in this series named for Edward J. Bloustein. Not many lecture series honor sitting university presidents who deliver the first lecture in the series; but President Bloustein is the very rare president whose long tenure in office has been accompanied by continuing academic productivity. That achievement is remarkable.

When I tentatively chose this topic a year ago, I knew it involved the application of philosophical insights to serious practical questions, the kind of work that President Bloustein has done so well. I also knew that the search for those aspects of human …

International Trade Issues For The 1990s, Jagdish N. Bhagwati

Faculty Scholarship

The open, multilateral trading system, centered on the General Agreement on Tariffs and Trade, is currently at risk. The threat continues to come from familiar directions. But there are new problems too.

Violence As Regulation And Social Control In The Distribution Of Crack, Jeffrey A. Fagan, Ko-Lin Chin

Faculty Scholarship

This chapter examines violence and aggression among crack and other illicit drug sellers in New York City. Few studies have addressed the origins of drug selling, specifically whether such drug violence reflects generalized violence or violent behaviors contingent on drug selling. Aggression in crack selling appears to be commonplace and severe (Goldstein et al., unpublished manuscript; Goldstein 1989; Johnson, et al. 1990; New York Times 1989b) and is the focus of this study. Aggression evident in nondrug criminality is compared for crack sellers and other seller types. If violence in drug selling is a distinct behavior that reflects the contingencies …

Resolving The Remedial Dilemma: Strategies Of Judicial Intervention In Prisons, Susan P. Sturm

Faculty Scholarship

During the last several decades, courts have undertaken to remedy ongoing constitutional and statutory violations in a variety of public and private institutions. Once a court determines that an institutional pattern or practice violates the law, it must face the challenge of structuring a process that will lead to the elimination of the illegal conditions or practices. Whether this judicial activity is called "ordinary" or "extraordinary," the remedial process in institutional reform litigation may lead the trial court to engage in a range of roles beyond those usually required to "resolve a traditional private dispute.

Courts involved in institutional reform …

A Tale Of Two Copyrights: Literary Property In Revolutionary France And America, Jane C. Ginsburg

Faculty Scholarship

The French and U.S. copyright systems are well known as opposites. The product of the French Revolution, French copyright law is said to enshrine the author: exclusive rights flow from one's (preferred) status as a creator. For example, a leading French copyright scholar states that one of the "fundamental ideas" of the revolutionary copyright laws is the principle that "an exclusive right is conferred on authors because their property is the most justified since it flows from their intellectual creation." By contrast, the U.S. Constitution's copyright clause, echoing the English Statute of Anne, makes the public's interest equal, if not …

The Rule Of Law And The Two Realms Of Welfare Administration, William H. Simon

Faculty Scholarship

Although it was not the first case in which the Supreme Court upheld a welfare claim, Goldberg v. Kelly is often thought of as the case that extended the rule of law to the welfare system. In doing so, it repudiated the "right/privilege" distinction that would confine procedural protections of economic interests to private law claims.

But Goldberg did not challenge basic assumptions about the nature of procedural fairness that the legal culture had developed principally in connection with private law claims. Its conception of fairness focused on claims initiated by individuals for relief for themselves, and on an adjudicatory …

Rational Decisionmaking About Marriage And Divorce, Elizabeth S. Scott

Faculty Scholarship

The apparent normative goal of modem divorce law is the efficient termination of unsuccessful marriages. Once the couple (or either party) determine that the marriage is no longer satisfactory, then quick and easy exit is deemed desirable. As Carl Schneider suggests, the law has withdrawn from moral discourse about divorce, adopting a neutral stance toward marital dissolution. Although divorce typically imposes formidable psychological and economic costs, there are few legal incentives to remain married, or even to consider thoughtfully the decision to end the marriage. Moreover, although decisions about marriage and divorce have important legal implications, the law does nothing …

A Relational Theory Of Default Rules For Commercial Contracts, Robert E. Scott

Faculty Scholarship

The relationship between legal rules and the strategies that commercial parties use to deal with risk is among the most important and least understood topics in law and economics. Organizational theorists have generally confined their analyses to the nature of the firm and other permanent relationships. Academic commercial lawyers, in turn, have been far less venturesome than their corporate colleagues in applying fundamental economic insights. Not surprisingly, therefore, we know very little about the inner workings of most commercial relationships. For these reasons (and more) I applaud efforts to integrate economic insights and legal structures, exemplified by Clay Gillette's imaginative …