Law Commons^™

Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman

Faculty Scholarship

Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, Professor Daniel Richman argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer …

Realization As Subsidy, David M. Schizer

Faculty Scholarship

Perhaps no concept in tax law is so well established, and yet so widely criticized, as realization, the rule that defers tax on appreciated property until it is sold. In this Article, Professor Schizer offers a new justification for realization: It is a subsidy for savings. The recent reduction in the capital gains tax rate suggests that Congress wants such a subsidy, the author observes. He then argues that realization has a significant advantage as a subsidy. It is credible, in that taxpayers expect it to strvive long enough for them to collect it This is important, Professor Schizer then …

The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller

Faculty Scholarship

For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," …

The Process Of Terry-Lawmaking, Daniel C. Richman

Faculty Scholarship

The organizers of this Conference obviously gave a lot of thought to its structure. We started off with a session that showed the Supreme Court at its best, working under the gentle leadership of Chief Justice Warren, and guided by the sage counsel of Justice Brennan, to balance the demands of the Fourth Amendment with the exigencies of street encounters. Now we come to a session in which the Supreme Court comes off well, not merely in one, but in both papers. For Steve Saltzburg, Terry itself may not have been perfect, but, over time, the Court has made it …

Reflections In A Distant Mirror: Japanese Corporate Governance Through American Eyes, Ronald J. Gilson

Faculty Scholarship

For the last ten years, Japanese corporate governance has served as a distant mirror in whose reflection American academics could better see the attributes of their own system. As scholars came to recognize that the institutional characteristics of the American and Japanese systems were politically and historically contingent, other countries' approaches became serious objects of study, rather than just way stations on the road to convergence. One learned about one's own system from the choices made by others.

As it came to be conceived, the Japanese corporation of the 1980s represented quite a different method of organizing production. Styled the …

Use Of Force And Constitutionalism, Lori Fisler Damrosch

Faculty Scholarship

Are constitutional democracies more inclined than other kinds of regimes to observe the international law of the United Nations Charter on use of force? Are they relatively more vulnerable to unlawful behavior by others? How can constitutional democracies ensure fidelity to their underlying constitutional principles when they engage in multinational military operations for preservation or restoration of international peace? These and related questions at the intersection of the international and national legal orders merit careful attention as political structures around the world undergo post-Cold War transformation.

New York State's Brownfields Programs: More And Less Than Meets The Eye, Michael B. Gerrard

Faculty Scholarship

New York, as the nation's second most populous state, and one of its oldest and most urban, has an abundance of brownfields-slightly contaminated properties that were formerly used for industrial purposes, but that are now unused or underused, and ripe for redevelopment if they can be cleaned up. Thus, it may be surprising that New York is one of the few states without a comprehensive statute or regulation for the voluntary cleanup of brownfields.

There is, however, more here than meets the eye. New York has three important programs and several smaller ones that provide procedures, money, or incentives for …

Originalism And The Religion Clauses: A Response To Professor George, Kent Greenawalt

Faculty Scholarship

This response to Professor Robert George's thoughtful remarks tries to preserve the flavor of a brief rejoinder in a debate. I sketch differences with him over some major topics, but I do not develop these at length.

Understanding The Choice Between Public And Private Equity Financing Of Early Stage Companies: A Comment On Barry And Turki, Ronald J. Gilson

Faculty Scholarship

This Comment considers the results of Barry and Turki's research data that indicates that investments perform differently depending on whether innovation is financed by private or public equity investment. The Comment posits two hypotheses for the differential performance. The first highlights ex ante differences between private and public subsamples, that is that the financing choice separates good prospects from bad. The second hypothesis focuses on ex post differences in performance that results from differences in governance structure and incentives created by the structure of public and private equity investment. The ex ante separation hypothesis and the ex post performance hypothesis …

Ownership Of Electronic Rights And The Private International Law Of Copyright, Jane C. Ginsburg

Faculty Scholarship

When, in response to a French decision upholding the rights of employee journalists to prevent the publisher's unauthorized licensing of electronic rights in the journalists' articles, French newspaper publishers yearn for "American-style copyright," they must imagine a work-made-for-hire nirvana in which publishers dispose of all rights in contributions to their periodicals, heedless of (and legally shielded from) authors' pesty claims for payment or control. To the extent that the work-made-for-hire doctrine applies, the publishing paradise conjured up by these French fantasies of law "reform" is very real indeed. Under U.S. copyright law, employee creators are not statutory "authors;" their employer …

Foreword, Robert E. Scott

Faculty Scholarship

The Equal Education Under the Law Symposium continues a conversation among legal and educational professionals that seeks to advance and perhaps refocus the rather dramatic debate over the future of public education in our country. The good news for this debate is that we start with a clear consensus on goals. Few, if any, would dissent from the following statement of principle: the future success of this nation depends in large measure on the requirement that every citizen have the chance to share in the country's good fortune, and the key to providing that chance, for all citizens, lies in …

Foreword, Daniel Richman

Faculty Scholarship

There is a degree of irony in calling this a Symposium on "The Changing Role of the Federal Prosecutor." In perhaps its most important aspect, the role of the federal prosecutor has not changed at all – or, at least, we do not want it to change. At its core, the prosecutor's job always has been to mediate between spectacularly broad, legislative pronouncements and the equities of individual cases, giving due attention to the public interest and such technical matters as evidentiary sufficiency. This continues to be true. Indeed, the full title of the Symposium celebrates our hope for continuity …

The Fall And Rise Of Criminal Theory, George P. Fletcher

Faculty Scholarship

These are good times – at least for the theory of criminal law. This special issue of Buffalo Criminal Law Review testifies to a remarkable surge of interest among younger scholars in perennial questions: Why should we punish offenders? Do we require a human act as a precondition for liability and what is its structure? What does it mean for someone to be guilty or culpable for committing an offense? How do we avoid contradictions in structuring the criteria of liability? The time has come for renewed intensity in pondering and discussing these basic issues.

The contributions of this symposium …

The Justiciability Of Paraguay's Claim Of Treaty Violation, Lori Fisler Damrosch

Faculty Scholarship

The U.S. Government's position asserting nonjusticiability of the treaty claims raised by Paraguay in the domestic and international lawsuits is disturbing. The Government's amicus filings at the court of appeals and the Supreme Court denied that Paraguay's claims belonged in federal court (or indeed in any court at all); at the International Court of Justice, the United States admitted a treaty violation but denied the competence of that tribunal to enter a judicial remedy. At one or another phase of these proceedings, the U.S. Government pressed a variety of arguments that (if accepted) would rule out virtually any judicial consideration …

Does The Constitution Require That We Kill The Competitive Goose? Pricing Local Phone Services To Rivals, William J. Baumol, Thomas W. Merrill

Faculty Scholarship

This Article concludes a series by these authors and Professors J. Gregory Sidak and Daniel F. Spulber, published last year in this journal. Here, Professors Baumol and Merrill address the issues surrounding the pricing of local phone services to long distance rivals, clarifying their points of agreement and disagreement with Sidak and Spulber. In their previous articles, Sidak and Spulber argued that the movement toward competition in local telephone service should be accompanied by substantial compensation to existing local telephone carriers, a view that Baumol and Merrill do not share. Rather, they note three points of disagreement between Sidak and …

Is There A Future For Future Claimants After Amchem Products, Inc. V. Windsor?, Alex Raskolnikov

Faculty Scholarship

In September 1990, the Chief Justice of the U.S. Supreme Court appointed an Ad Hoc Committee on Asbestos Litigation in response to what was widely perceived as a "'failure of the federal court system to perform one of its vital roles in our society.'" Less than a year later, the Judicial Panel on Multidistrict Litigation transferred all untried asbestos cases to the eastern district of Pennsylvania for pretrial proceedings. In January 1993, these proceedings produced a global settlement class action of historic proportions, which the district court eventually approved in August 1994. In May 1996, in Georgine v. Amchem Products, …

Compensation And The Interconnectedness Of Property, Thomas W. Merrill

Faculty Scholarship

Professor Joseph Sax's scholarship on the Takings Clause combines the craft of a first-class lawyer with the passion of a visionary. The good lawyer that he is, Sax's scholarship reflects a deep understanding of Supreme Court case law, legal history, and the practical dimensions of various kinds of land use disputes. Yet his work on takings is not animated by any desire for mere doctrinal tidiness. It is driven by a distinctive vision – one in which the earth's resources are becoming increasingly interconnected and in which there is an increasing need for the government to resolve conflicts regarding the …

High-Level, "Tenured" Lawyers, Thomas W. Merrill

Faculty Scholarship

Government lawyers can be broadly categorized as either political or civil service appointees. The political appointees constitute a thin layer at or near the top of the hierarchy of government lawyers. They include, most prominently, presidential appointees – "Officers of the United States" who must be nominated and confirmed by the Senate prior to their appointment. They also include a variety of lesser lawyers who are exempt from most of the civil service laws. Such exempt "inferior Officers" include, for example, the lawyers in the White House Counsel's office and so-called "Schedule C" lawyers who hold positions "of a confidential …

Gender Sex Agency And Discrimination: A Reply To Professor Abrams, Katherine M. Franke

Faculty Scholarship

According to the Equal Employment Opportunity Commission, sexual harassment is the fastest-growing area of employment discrimination. In fact, the annual number of sexual harassment complaints filed with the EEOC has more than doubled in the last six years. No one, or at least no one who has given this problem her serious attention, can deny that workplace sexual harassment is a grave problem and that it significantly impedes women's entrance into many sectors of the wage labor market.

Notwithstanding these impressive numbers, sexual harassment legal doctrine remains remarkably undertheorized – particularly by the Supreme Court. For these and other reasons, …

Declining Homicide In New York City: A Tale Of Two Trends, Jeffery Fagan, Franklin E. Zimring, June Kim

Faculty Scholarship

The mass media pay plenty of attention to crime and violence in the United States, but very few of the big stories on the American crime beat can be classified as good news. The driveby shootings and carjackings that illuminate nightly news broadcasts are the opposite of good tidings. Most efforts at prevention and law enforcement seem more like reactive attempts to contain ever expanding problems rather than discernable public triumphs. In recent American history, crime rates seem to increase on the front page and moderate in obscurity.

The recent decline in homicides in New York City is an exception …

Turning Servile Opportunities To Gold: A Strategic Analysis Of The Corporate Opportunities Doctrine, Eric L. Talley

Faculty Scholarship

Perhaps no single motif permeates corporate law and governance literature like the problem of agency costs. Though modest in concept, the canonical principal-agent framework yields fundamental insights into virtually every economic relationship involving the firm. These insights, in turn, not only animate prevailing positive accounts of the modern corporation, but they also provide a normative basis for regulating the oft-lamented gulf between ownership and control.

Despite their pervasiveness, problems of agency costs are rarely more vexing than when an agent is also a potential competitor. A notable example of such a scenario occurs when a corporate manager acquires information about …

Global Labor Rights And The Alien Tort Claims Act, Sarah H. Cleveland

Faculty Scholarship

Are labor rights human rights? Are some worker rights so fundamental that must be respected by all nations, and all corporations, under all circumstances? If so, who has the authority to define such rights, and how should they be enforced? What is the effect on the global economy of enforcing international worker rights? These are some of the questions confronted by the authors of Human Rights, Labor Rights, and International Trade, a compilation of essays by an international group of scholars, labor rights activists, and corporate executives addressing contemporary topics in the dialectic among labor, trade, and human rights.

Careers And Contingency, Gillian Lester

Faculty Scholarship

Disagreement among legal scholars over the phenomenon of "contingent employment" – work having limited hours, duration, or security – has led to disparate prescriptions for legal reform. For some, the best solution would be to either leave the market alone, or eliminate existing regulations that drive employers to create contingent jobs. Others believe current regulations do not go far enough and advocate reforms ranging from expanding mandatory benefits and protections to facilitating collective bargaining among contingent workers in order to restore such benefits as long-term security, training, and career advancement. The debate about law reform has centered partly on disputes …

Hands Off! Civil Court Involvement In Conflicts Over Religious Property, Kent Greenawalt

Faculty Scholarship

In this Article, Professor Kent Greenawalt explores how civil courts can constitutionally resolve conflicts over religious property. Although the practical and theoretical significance of this part of First Amendment law has often been overlooked, issues concerning church property continue to raise difficulties for both the courts charged with their resolution and the church members who wish to avoid the courts' intervention entirely. This Article argues that the general approach of noninvolvement that the Supreme Court has advocated in this area is consonant with broader themes in religion clause adjudication. Within this more general approach, Professor Greenawalt considers the two alternative …

A New Age Of Federalism, Thomas W. Merrill

Faculty Scholarship

Federalism has been in the news a lot over the past few years. The Republican-controlled Congress has enacted restrictions on the imposition of unfunded federal mandates on state governments and has passed significant welfare reform, one of the keys to which is greater state freedom in the implementation of welfare programs. The President, although often seen as resisting the more extreme Republican proposals for devolution, is himself something of an advocate for states’ rights. Clinton was a governor before he was President, and in that capacity he experienced a number of frustrations with federal red tape. Perhaps as a result, …

Guns, Youth Violence, And Social Identity In Inner Cities, Jeffrey Fagan, Deanna L. Wilkinson

Faculty Scholarship

While youth violence has always been a critical part of delinquency, the modern epidemic is marked by high rates of gun violence. Adolescents in cities possess and carry guns on a large scale, guns are often at the scene of youth violence, and guns often are used. Guns play a central role in initiating, sustaining, and elevating the epidemic of youth violence. The demand for guns among youth was fueled by an "ecology of danger," comprising street gangs, expanding drug markets with high intrinsic levels of violence, high rates of adult violence and fatalities, and cultural styles of gun possession …

Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard Harcourt

Faculty Scholarship

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …

Marriage As Relational Contract, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The evolution of marriage from a relationship based on status to one that is regulated by contractual norms achieved a milestone of sorts recently with the enactment of the Louisiana Covenant Marriage Act. Under this statute, couples entering marriage can choose to have the termination of their relationship regulated under conventional no-fault divorce rules, or they can voluntarily undertake a greater commitment to their marriage. For couples who select covenant marriage, either party can terminate the relationship on fault grounds, but unilateral termination of the marriage is available only after a substantial waiting period. The principal impact of the statute …

The Internal Relations Of Government: Cautionary Tales From Inside The Black Box, Peter L. Strauss

Faculty Scholarship

Both the structure of the Constitution and elementary civics texts imagine an Executive Branch under the close, unitary control of an elected chief executive, the President. Doubtless from the start, and unmistakably in the administrative state, the reality has been quite different. Those to whom Congress has delegated authority to act, particularly in that domain that we have in mind when invoking a "government of laws," conduct their business within a web more aptly described as coordination than control. In regulatory matters, the coordinating impulses run through the Department of Justice ("DOJ") and, increasingly, the Office of Information and Regulatory …

The Challenges Of Investigating Section 5k1.1 In Practice, Daniel Richman

Faculty Scholarship

From the very beginning, almost everyone familiar with the sentencing guidelines has recognized that substantial assistance motions pose a severe threat to the goal of horizontal equity in sentencing. The problem stems in part from the fact that any scheme using sentencing leniency to reward cooperation reduces the likelihood that two defendants of similar culpability and criminal history will receive the same sentence if one cooperates and the other doesn't. The damage, however, is potentially magnified by the particular system established by the federal guidelines: The absence of clear guidelines as to how cooperators should be treated makes it likely …