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Articles 1 - 30 of 76
Full-Text Articles in Law
The Election Of Thomas Buergenthal To The International Court Of Justice, Lori Fisler Damrosch
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.
Separation And Schools, Kent Greenawalt
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 Political Parties And Campaign Finance Reform, Richard Briffault
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, …
Herbert Wechsler And The Criminal Law: A Brief Tribute, Harold Edgar
Herbert Wechsler And The Criminal Law: A Brief Tribute, Harold Edgar
Faculty Scholarship
The great English architect Christopher Wren is buried in his most famous church, St. Paul's London. The inscription on his memorial stone concludes with the words: Lector, si monumentum requiris, circumspice. Reader, if you seek his monument, look around you.
That instruction serves well those who would appraise and honor Herbert Wechsler's contributions to American criminal law. When he joined the Columbia Law School faculty in 1933, this school did not teach criminal law and much of the profession thought the topic was not worth studying.' What fabulous good fortune it was that Herb thought otherwise. Throughout a long and …
Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt
Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt
Faculty Scholarship
In 1947, this Review published two lectures on statutory interpretation by Jerome Frank and Felix Frankfurter. Both jurists were concerned with a basic question: How constrained are judges when they interpret legislation? The answers each gives, while similar in some respects, differ strikingly. In arguing that interpretation necessarily involves a creative element, Frank analogizes the role of a judge in interpreting legislation to that of a performer in interpreting a musical composition. Although he argues that judicial creativity is constrained, Frank views statutory interpretation as "a kind of legislation." For Frankfurter, by contrast, in construing a statute, a judge is …
The Challenges Of Globally Accessible Process, Peter L. Strauss
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
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, …
Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies
Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies
Faculty Scholarship
Patterns of "stop and frisk" activity by police across New York City neighborhoods reflect competing theories of aggressive policing. "Broken Windows" theory suggest that neighborhoods with greater concentration of physical and social disorder should evidence higher stop and frisk activity, especially for "quality of life" crimes. However, although disorder theory informs quality of life policing strategies, patterns of stop and frisk activity suggest that neighborhood characteristics such as racial composition, poverty levels, and extent of social disorganization are stronger predictors of race- and crime-specific stops. Accordingly, neighborhood "street stop" activity reflects competing assumptions and meanings of policing strategy. Furthermore, looking …
The Direction Of Corporate Law: The Scholars' Perspective, John C. Coffee Jr., Richard A. Booth, R. Franklin Balotti, David C. Mcbride, Edward P. Welch
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
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 …
Convergence And Its Critics: What Are The Preconditions To The Separation Of Ownership And Control?, John C. Coffee Jr.
Convergence And Its Critics: What Are The Preconditions To The Separation Of Ownership And Control?, John C. Coffee Jr.
Faculty Scholarship
Recent commentary has argued that deep and liquid securities markets and a dispersed shareholder base are unlikely to develop in civil law countries and transitional economies for a variety of reasons, including (1) the absence of adequate legal protections for minority shareholder, (2) the inability of dispersed shareholders to hold control or pay an equivalent control premium to that which a prospective controlling shareholder will pay and (3) the political vulnerability of dispersed shareholder ownership in left-leaning "social democracies." Nonetheless, this article finds that significant movement in the direction of dispersed ownership has occurred and is accelerating across Europe. To …
Dignity And Victimhood, Kent Greenawalt
Dignity And Victimhood, Kent Greenawalt
Faculty Scholarship
If Sandy Kadish has reminded us of limitations of consequentialist approaches to the criminal law and has proposed persuasive resolutions of issues that deontological perspectives reveal, Meir Dan-Cohen has jarred us to rethink fundamental premises about rules in the criminal justice system. His Essay is an example of his ingenuity for unsettling understandings. The Essay reads easily and seems deceptively straightforward, but it is rich in nuance and its themes are complex. This Response identifies the various themes and evaluates their plausibility. I take Professor Dan-Cohen's Essay as a preliminary exploration of a major subject, and I have responded accordingly, …
The Influence Of Amicus Curiae Briefs On The Supreme Court, Joseph D. Kearney, Thomas W. Merrill
The Influence Of Amicus Curiae Briefs On The Supreme Court, Joseph D. Kearney, Thomas W. Merrill
Faculty Scholarship
The last century has seen little change in the conduct of litigation before the United States Supreme Court. The Court's familiar procedures – the October Term, the opening-answering-reply brief format for the parties, oral argument before a nine-member Court – remain essentially as before. The few changes that have occurred, such as shortening the time for oral argument, have not been dramatic.
The Article is organized as follows. Part I provides an overview of amicus curiae activity in the Supreme Court over the last fifty years, tracking the increase in amicus filings and in the Court's citation and quotation of …
Are Mental States Relevant For Statutory And Constitutional Interpretation, Kent Greenawalt
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 …
After The "Social Meaning Turn": Implications For Research Design And Methods Of Proof In Contemporary Criminal Law Policy Analysis, Bernard E. Harcourt
After The "Social Meaning Turn": Implications For Research Design And Methods Of Proof In Contemporary Criminal Law Policy Analysis, Bernard E. Harcourt
Faculty Scholarship
The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects …
On The Socratic Maxim, Joseph Raz
On The Socratic Maxim, Joseph Raz
Faculty Scholarship
Many years ago John Finnis and I became interested in the Socratic view that it is better to suffer wrong than to do it. My interest was triggered by Anselm Müller's lecture on the subject given at Balliol at that time. Finnis discussed the issue in his Fundamentals of Ethics, where Müller's influence on him is acknowledged. At the time John Finnis and I debated the maxim and had a lengthy correspondence about it, but we did not convince each other. Now when I return to the issue, I can no longer remember the position I then took, except …
Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt
Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt
Faculty Scholarship
The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …
The Nature And Function Of Criminal Theory, George P. Fletcher
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
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 …
Opening Remarks: Reclaiming Yesterday's Future, Kimberlé W. Crenshaw
Opening Remarks: Reclaiming Yesterday's Future, Kimberlé W. Crenshaw
Faculty Scholarship
Good morning colleagues, friends, and special guests of the Symposium. I have the unenviable task of welcoming you to the UCLA School of Law this morning, a task that under current circumstances carries with it for me quite a few mixed emotions.' I have struggled mightily over how I might convey to you that although my heart is heavy this morning, I am very pleased to see each of you. It is rather like opening the door to welcome close friends into your home which is in a state of utter disarray. Things are strewn all about, you look harried …
The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann
The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann
Faculty Scholarship
Common justifications for the use of the letter of credit fail to explain its widespread use. The classic explanation claims that the letter of credit provides an effective assurance of payment from a financially responsible third party. In that story, the seller – a Taiwanese clothing manufacturer, for example – fears that the overseas buyer – Wal-Mart – will refuse to pay once the goods have been shipped. Cross-border transactions magnify the concern, because the difficulties of litigating in a distant forum will hinder the manufacturer's efforts to force the distant buyer to pay. The manufacturer-seller solves that problem by …
Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis
Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis
Faculty Scholarship
This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case ("Hormones case") is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular …
A Legal Giant Is Dead, Henry Paul Monaghan
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 …
On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz
On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz
Faculty Scholarship
As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method – the free-form, oral interview conducted personally by the principal researcher – …
Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd
Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd
Faculty Scholarship
Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more – often below a majority. Grants of executive clemency reached a twenty year high …
Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's The Role Of Letters Of Credit In Payment Transactions, Avery W. Katz
Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's The Role Of Letters Of Credit In Payment Transactions, Avery W. Katz
Faculty Scholarship
Ronald Mann's study of documentary defects in the presentation of commercial letters of credit1 is a valuable contribution to the commercial law literature in at least three respects. First, it offers a detailed and thorough empirical survey of an important though specialized aspect of commercial practice. Mann collected and coded a data sample of 500 randomly selected letter-of-credit transactions, personally evaluating each transaction to determine whether the documentary presentation by the beneficiary of the letter of credit (i.e., the seller) complied with the letter's formal terms. Then, for each case in which he found one or more documentary defects, Mann …
Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott
Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott
Faculty Scholarship
Americans have interesting and somewhat puzzling attitudes about the state's role in defining and enforcing family obligations. Most people view lasting marriage as an important part of their life plans and take the commitment of marriage very seriously. Yet any legal initiative designed to reinforce that commitment generates controversy and is viewed with suspicion in many quarters. For example, covenant marriage statutes, which offer couples entering marriage the option of undertaking a modest marital commitment, are seen by many observers as coercive and regressive measures rather than ameliorating reforms.
The law tends to reflect – and perhaps contributes to – …
Liberality, Philip A. Hamburger
Liberality, Philip A. Hamburger
Faculty Scholarship
Did late eighteenth-century Americans ever consider themselves liberal? To many historians, this will seem a strange question. The concept of liberalism is widely held to be a nineteenth-century innovation, and therefore to inquire whether Americans in the previous century thought of themselves as liberal seems anachronistic.
Yet precisely because so many scholars take for granted the late evolution of liberal ideas, it may be all the more valuable to reexamine this assumption. Is there really no evidence that eighteenth-century Americans considered themselves liberal? Although they may not have embraced later concepts of liberalism, is it not at least possible that …
Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip Genty
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 …
In Search Of Best Efforts: Reinterpreting Bloor V. Falstaff, Victor P. Goldberg
In Search Of Best Efforts: Reinterpreting Bloor V. Falstaff, Victor P. Goldberg
Faculty Scholarship
When contracting parties cannot quite define their obligations, they often resort to placeholder language, like "best efforts." They (and their counsel) likely have little idea of what they might mean, but, so long as they avoid litigation, it will not matter much. But "best efforts" clauses are on occasion litigated, and courts must read content into them. In Bloor v. Falstaff, a casebook favorite, the court held that Falstaff s lackluster promotional efforts for Ballantine beer violated its best efforts covenant. So far as I can tell, no commentators have questioned this outcome. Indeed, some commentators have found Falstaff …