Law Commons^™

Human Rights In The United States Human Rights In The United States: A Special Issue Celebrating The 10th Anniversary Of The Human Rights Institute At Columbia Law School: Foreword, Sarah Cleveland, Catherine Powell

Faculty Scholarship

This year marks the tenth anniversary of the founding of the Human Rights Institute (HRI) at Columbia Law School. Appropriately, it also marks the sixtieth anniversary of the Universal Declaration of Human Rights, the foundational instrument of the modern international human rights regime. When HRI was founded in 1998, it was established as a crossroads for human rights at Columbia, which would bridge theory and practice, human rights and constitutional rights, and law and other disciplines. From its inception, HRI has been a partner with the university-wide Center for the Study of Human Rights, which was established twenty years earlier …

Problem Of Equality In Takings, The , Nestor M. Davidson

Faculty Scholarship

The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest …

Imagining Gun Control In America: Understanding The Remainder Problem Article And Essay, Nicholas J. Johnson

Faculty Scholarship

Gun control in the United States generally has meant some type of supply regulation. Supply restrictions ranging from one-gun-a-month schemes to flat gun bans cannot work without a willingness and ability to reduce total inventory to levels approaching zero ("the supply-side ideal"). This is an impossible feat in a country that already has 300 million guns tightly held by people who think they are uniquely important tools. The average defiance ratio in places that have attempted gun confiscation and registration is 2.6 illegal guns for every legal one. In many countries defiance is far higher. None of those countries has …

Desert And The Eighth Amendment Symposium: Cruel And Unusual Punishment: Litigating Under The Eighth Amendment, Youngjae Lee

Faculty Scholarship

The task of this Article is to evaluate these two approaches to understanding the role of retribution as a constitutional constraint. And in order to do so, I would like to first answer a related question, one step removed: What should be the significance of ordinary intuitions about what people deserve when scholars theorize about what people deserve? If a popular belief about a question of desert does not match up with conclusions arrived at through theorizing and reflections about desert, who should revise their views-"the people" or the theorists? I suggest in this Article that the answer is twofold. …

The Transatlantic Divergence In Legal Thought: American Law And Economics Vs. German Doctrinalism, The, Kristoffel Grechenig, Martin Gelter

Faculty Scholarship

Law and economics has become an integral part of U.S. legal scholarship and the law school curriculum. Ever since the legal realist movement, scholars mostly view the law from an external perspective. It may be surprising to many in the United States that European legal scholarship has been largely resistant to this development. Law is typically viewed "from the inside," that is as an autonomous discipline independent from the other social sciences. Most legal scholarship is doctrinal, meaning that legal scholars employ interpretative methods in order to systematically expose the law and to find out what the law is, frequently …

Wilfulness Versus Expectation: A Promise-Based Defense Of Wilfull Breach Doctrine, Steve Thel, Peter Siegelman

Faculty Scholarship

Willful breach doctrine should be a major embarrassment to contract law. If the default remedy for breach is expectation damages designed to put the injured promisee in the position she would have been in if the contract had been performed, then the promisor's behavior-the reason for the breach-looks to be irrelevant in assessing damages. And yet the cases are full of references to "willful" breaches, which seem often to be treated more harshly than ordinary ones based on the promisor's bad/willful conduct. Our explanation is that willful breaches are best understood as those that should be prevented or deterred because …

The Empirics Of Prison Growth: A Critical Review And Path Forward, John F. Pfaff

Faculty Scholarship

A growing empirical literature has sought to explain the forces behind the significant expansion of the U.S. prison population over the past thirty years. Unfortunately, the studies to date have suffered from important methodological, conceptual, and definitional problems that have significantly curtailed their ability to identify causal effects. In this Article, I examine several of the central limitations and discuss remedies. I start by reviewing the theories that investigators have sought to test. I then discuss the studies' empirical defects, such as failing to account for endogenous relationships, overlooking the risk of model dependency, ignoring complex dynamic relationships, using variables …

Public Service Must Begin At Home: The Lawyer As Civics Teacher In Everyday Practice, Bruce A. Green, Russell Pearce

Faculty Scholarship

Fifty years ago, the leading national representatives of the American legal profession, the American Bar Association (ABA), and the Association of American Law Schools (AALS), issued a joint report (the Report) on the nature of lawyers' professional responsibility in the context of the adversary system. Principally authored by legal philosopher Lon Fuller, who co-chaired the joint conference that issued it, the Report's premise was that the legal profession's inherited traditions provided only indirect guidance to lawyers in light of their changing roles, and that a "true sense of professional responsibility" must derive from an understanding of the "special services" that …

Gender And Nation-Building: Family Law As Legal Architecture Symposium - Nation Building: A Legal Architecture: Articles And Essays, Tracy E. Higgins, Rachel P. Fink

Faculty Scholarship

Although the discipline of family law in the western legal tradition transcends the public/private law boundary in many ways, it is the argument of this Essay that family law, in the private law sense of defining the rights and obligations of members of a family, forms an important part of the legal architecture of nation-building in at least three ways. First, access to the resources of the nation-state devolves through biologically and culturally gendered national boundaries, both reflecting and reinforcing the differential status of men and women in the sphere of the family. Second, the social institution of the family …

In Defense Of Property , Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Faculty Scholarship

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly …

Civil War In The U.S. Foreign Relations Law: A Dress Rehearsal For Modern Transformations, The The Use And Misuse Of History In U.S. Foreign Relations Law, Thomas H. Lee

Faculty Scholarship

The first of the four U.S. foreign relations law insights of the Prize Cases that this Article will discuss is the notion that international law provides a basis for the President's exercise of military force in a manner neither specifically enumerated in the Constitution nor preauthorized by congressional enactments. The specific military action was the proclamation of a naval blockade that applied not only to active Confederate belligerents but also to loyal U.S. citizens residing in seceding or soon-to-secede states and to foreign neutral citizens. The second insight is the notion that federal constitutional law protections for U.S. citizens, such …

Anti-Corruption Principle, The, Zephyr Teachout

Faculty Scholarship

There is a structural anti-corruption principle, akin to federalism or the separation-of-powers principle, embedded in the Constitution. The Constitution was designed, in large part, to protect against corruption. This structural principle - like the other structural principles - should inform how judges "do" modern political process cases. This paper documents the corruption concerns at the Constitutional convention in detail. It then examines how the modern Supreme Courts' conception of corruption is fractured and ahistorical, and has led to an incoherent jurisprudence. Instead of starting with Buckley v. Valeo, as so many modern cases do, the Court should return to the …

Recidivism As Omission: A Relational Account , Youngjae Lee

Faculty Scholarship

Are repeat offenders more culpable than first-time offenders? In the United States, the most important determinant of punishment for a crime, other than the seriousness of the crime itself, is the offender's criminal history. Despite the popularity of the view that repeat offenders deserve to be treated more harshly than first-time offenders, there is no satisfactory retributivist account of the "recidivist premium." This Article advances a retributivist defense of the recidivist premium and proposes that the recidivist premium be thought of as punishment not, as sometimes suggested, for a defiant attitude or a bad character trait, but as punishment for …

Beyond Analogy: Perez V. Sharp, Antimiscegenation Law, And The Fight For Same-Sex Marriage, Robin A. Lenhardt

Faculty Scholarship

Conversations about the constitutionality of prohibitions on marriage for same-sex couples invariably reduce to the question of whether a meaningful analogy can be drawn between restrictions on same-sex marriage and antimiscegenation laws. In an effort to refocus this debate, this article considers the California Supreme Court's 1948 decision in Perez v. Sharp and its use by advocates in recent litigation to secure marriage rights for gay and lesbian couples. Opponents of marriage rights for members of the LGBT *840 community frequently assert that dispatching Perez in these cases distorts the meaning of that decision and other similar precedents by drawing …

Is There A Dual Banking System , Carl Felsenfeld, Genci Bilali

Faculty Scholarship

There is a fierce controversy being waged today about the status of the historic dual banking system in American law. National banks (banks chartered by the national government) derive their powers from federal law. States, on the other hand, assert that they should be able to control certain aspects of national bank operations such as consumer protection written as state law. While the national banks acknowledge that states do have certain areas where they may control national bank activities-much contract law, for example, which is essentially state law-the national banks also assert a high level of authority-preemption-over the states where …

Filtering, Piracy Surveillance And Disobedience , Sonia K. Katyal

Faculty Scholarship

There has always been a cyclical relationship between the prevention of piracy and the protection of civil liberties. While civil liberties advocates previously warned about the aggressive nature of copyright protection initiatives, more recently, a number of major players in the music industry have eventually ceded to less direct forms of control over consumer behavior. As more aggressive forms of consumer control, like litigation, have receded, we have also seen a rise in more passive forms of consumer surveillance. Moreover, even as technology has developed more perfect means for filtering and surveillance over online piracy, a number of major players …

Physicians And Execution: Highlights From A Discussion Of Lethal Injection, Deborah W. Denno

Faculty Scholarship

No abstract provided.

How The Merits Matter: Directors' And Officers' Insurance And Securities Settlements, Tom Baker, Sean J. Griffith

Faculty Scholarship

This Article seeks what may be the holy grail of securities law scholarship—the role of the "merits" in securities class actions--by investigating the relationship between settlements and directors' and officers' (D&O) liability insurance. Drawing upon in-depth interviews with plaintiffs' and defense lawyers, D&O insurance claims managers, monitoring counsel, brokers, mediators, and testifying experts, we elucidate the key factors influencing settlement and examine the relationship between these factors and notions of merit in civil litigation. We find that, although securities settlements are influenced by some factors that are arguably merit related, such as the "sex appeal" of a claim's liability elements, …

The Case For Symmetry In Creditors' Rights, Richard Squire

Faculty Scholarship

Using an original framework for evaluating bankruptcy rules, this article casts doubt on the efficiency of legal arrangements that give some creditors an absolute advantage over others in the division of a debtor's assets. Such arrangements, which I classify as asymmetrical, are widely used in the modem economy, and include the secured loan, American general partnership, and guaranty contract. In contrast, symmetrical arrangements, which include the corporation and common law partnership, confer no absolute advantage, because they give each creditor group a prior claim to a distinct debtor asset pool. I demonstrate that symmetrical arrangements produce lower debt appraisal costs, …

Friends As Fiduciaries, Ethan J. Leib

Faculty Scholarship

This Article argues that the law of fiduciary duties provides a good framework for friends to understand their duties to one another better, gives courts a useful set of rhetorical and analytical tools to employ when they are forced to entertain disputes that arise between close friends, and, finally, can help direct courts to furnish betrayed friends certain kinds of remedies that are most appropriate for achieving justice within that dispute context. This is not the first Article to make an effort to expand the reach of the fiduciary concept into new sorts of relationships that are not always considered …

Voluntarism, Vulnerability, And Criminal Law: A Response To Professors Hills And O'Hear , Ethan J. Leib, Dan Markel, Jennifer M. Collins

Faculty Scholarship

This Response addresses the criticisms of our project by Professors Rick Hills and Michael O'Hear. Before we address those challenges, we first want to reiterate our gratitude to the B.U. Law Review for hosting an exchange based on our article, Punishing Family Status (forthcoming BU LR, December 2008), and to Professors Hills and O'Hear for their careful and subtle analysis of that article. Additionally, it's worth recapitulating what our bottom-line conclusions are so we can better see if there are any practical disagreements with our critics. Summarizing quickly: we support decriminalization in the cases of parental responsibility laws (based on …

Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark

Faculty Scholarship

The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these state-based reform options. Categorically rejecting all state-based reform is …

Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel

Faculty Scholarship

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …

Vertical Learning: On Baker And Rodriguez's "Constitutional Home Rule And Judicial Scrutiny", Nestor M. Davidson

Faculty Scholarship

In Constitutional Home Rule and Judicial Scrutiny, Lynn Baker and Daniel Rodriguez start an important conversation about an interesting and understudied puzzle. In one view of vertical federalism, the federal government is understood as constrained to enumerated powers, states retain plenary police power, and local governments are traditionally creatures of the state. This view yields something of structural constitutional bell curve that situates the heart of sovereignty at the state level, leaving the federal government and local governments with forms of limited authority on either end. Despite this seemingly privileged state position, however, federal courts seem unwilling in the main …

Standardization And Pluralism In Property Law , Nestor M. Davidson

Faculty Scholarship

At the heart of contemporary property theory stands an intriguing puzzle. Unlike the relatively unconstrained freedom that contract law provides for private ordering, property law recognizes only a limited and standard list of mandatory forms. This standardization-known as the numerus clausus from the civil law concept that the "number is closed" -poses a basic conundrum: what can explain a persistent feature of the law that seems, at first glance, so clearly to restrict the autonomy and efficiency gains conventionally associated with private property? This Article proceeds in four parts. Part I describes the numerus clausus principle and the problems that …

Property And Relative Status , Nestor M. Davidson

Faculty Scholarship

Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signaling function of property-with property serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …

Happy Families - Translating Positive Psychology Into Family Law, Clare Huntington

Faculty Scholarship

Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Faculty Scholarship

Although the federal government is traditionally understood to enjoy exclusive authority over immigration, states and localities are increasingly asserting a role in this field. This development has sparked vigorous debate on the propriety of such involvement, but the debate is predicated on a misunderstanding of the nature of federal exclusivity. Challenging the conventional wisdom that the Constitution precludes a meaningful role for state and local involvement in immigration.

This Article argues that the Constitution allows immigration authority to be shared among levels of government. After establishing the correctness of this view of immigration authority, this Article argues that the constitutionality …

Introduction: Symposium: The Lethal Injection Debate: Law And Science, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Liberal Justices' Reliance On Legislative History, James J. Brudney, Corey Distlear

Faculty Scholarship

This Article presents a strong case against the conventional wisdom that legislative history is a "politicized'" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part …