Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 51

Full-Text Articles in Law

High-Level, "Tenured" Lawyers, Thomas W. Merrill Jan 1998

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 ...


Compensation And The Interconnectedness Of Property, Thomas W. Merrill Jan 1998

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 ...


Putting Sex To Work, Katherine M. Franke Jan 1998

Putting Sex To Work, Katherine M. Franke

Faculty Scholarship

When I was living in New Haven a number of years ago, a miracle happened that drew people by the thousands to witness evidence of the Divine. A crucifix had been found to appear in the body of an oak tree in the middle of Worchester Square. I went – after all, how often do you get to see that kind of thing? Not surprisingly, at first I couldn't see anything but the usual trunk and limbs of a tree. Yet a believer took the time to show me what was really there, something that my untrained eye could not ...


Does The Constitution Require That We Kill The Competitive Goose? Pricing Local Phone Services To Rivals, William J. Baumol, Thomas W. Merrill Jan 1998

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 ...


The Internal Relations Of Government: Cautionary Tales From Inside The Black Box, Peter L. Strauss Jan 1998

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 ...


Judicial Review Of Discount Rates Used In Regulatory Cost-Benefit Analysis, Edward R. Morrison Jan 1998

Judicial Review Of Discount Rates Used In Regulatory Cost-Benefit Analysis, Edward R. Morrison

Faculty Scholarship

Executive orders, statutes, and precedent increasingly require cost-benefit analysis of regulations. Presidential executive orders have long required executive agencies to submit regulatory impact analyses to the Office of Management and Budget ("OMB") before issuing regulations, and recent federal legislation exhibits a trend toward mandatory cost-benefit analysis. For example, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, and the recent Safe Drinking Water Act Amendments require the Environmental Protection Agency to balance costs and benefits in regulating chemicals and pesticides. In 1995, Congress passed the Unfunded Mandates Act, requiring cost-benefit analysis of all significant federal regulations that ...


The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller Jan 1998

The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller

Faculty Scholarship

Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse – a tragedy of the commons. Depleted fisheries and ...


Gender Sex Agency And Discrimination: A Reply To Professor Abrams, Katherine M. Franke Jan 1998

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 Jan 1998

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 ...


A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel Jan 1998

A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that ...


Conflicts Consent And Allocation After Amchem Products – Or Why Attorneys Still Need Consent To Give Away Their Clients' Money, John C. Coffee Jr. Jan 1998

Conflicts Consent And Allocation After Amchem Products – Or Why Attorneys Still Need Consent To Give Away Their Clients' Money, John C. Coffee Jr.

Faculty Scholarship

If it was the goal of Silver and Baker to write a provocative article, they have succeeded. They ask probing questions; they are appropriately scornful of superficial answers; and they seek to relate their view of legal ethics to what they perceive to be the prevailing standards in the legal marketplace. All this is good. They also usefully focus on an underappreciated dichotomy: the ethical rules governing aggregated settlements in consensual litigation versus the rules applicable in aggregated nonconsensual litigation (i.e., class actions). Essentially, they argue that the rules in both contexts should be the same or very similar ...


Autonomy Through Separation?: Environmental Law And The Basic Law Of Hong Kong, Benjamin L. Liebman Jan 1998

Autonomy Through Separation?: Environmental Law And The Basic Law Of Hong Kong, Benjamin L. Liebman

Faculty Scholarship

One hundred days after taking office as Chief Executive of the Hong Kong Special Administrative Region (Hong Kong SAR) of the People's Republic of China, Tung Chee-hwa pledged both to take steps to improve Hong Kong's environment, and to increase coordination of environmental policy with officials in neighboring Guangdong Province. Tung's comments marked a rhetorical shift from environmental policy in British Hong Kong: eight years earlier, the Hong Kong government's first White Paper on environmental policy, Pollution in Hong Kong – A Time to Act, made only passing mention of China. Yet the White Paper was not ...


Turning Servile Opportunities To Gold: A Strategic Analysis Of The Corporate Opportunities Doctrine, Eric L. Talley Jan 1998

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 ...


Is There A Future For Future Claimants After Amchem Products, Inc. V. Windsor?, Alex Raskolnikov Jan 1998

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 ...


The Courts And The Congress: Should Judges Disdain Political History?, Peter L. Strauss Jan 1998

The Courts And The Congress: Should Judges Disdain Political History?, Peter L. Strauss

Faculty Scholarship

In an earlier article in these pages, Professor John Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of the separation of powers. Professor Strauss, acknowledging that the previous generation of courts may have excessively credited the minutiae of legislative history, responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. Our history ...


The Great Transformation Of Regulated Industries Law, Joseph D. Kearney, Thomas W. Merrill Jan 1998

The Great Transformation Of Regulated Industries Law, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on whether the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most ...


Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan Jan 1998

Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan

Faculty Scholarship

Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design ...


Antisuit Injunctions And Preclusion Against Absent Nonresident Class Members, Henry Paul Monaghan Jan 1998

Antisuit Injunctions And Preclusion Against Absent Nonresident Class Members, Henry Paul Monaghan

Faculty Scholarship

In this Article, Professor Monaghan addresses an issue of pressing concern in class action litigation today, namely, the extent to which a trial court's class judgment can bind – either by preclusion or injunction – unnamed nonresident class members, thus preventing them from raising due process challenges to the judgment in another court. After placing the antisuit injunction and preclusion issues in the context of recent class action and related developments, Professor Monaghan discusses the Supreme Court's 1985 decision in Phillips Petroleum Co. v. Shutts and its applicability to these issues. In particular, Professor Monaghan criticizes reading Shutts' "implied consent ...


Authors As "Licensors" Of "Informational Rights" Under U.C.C. Article 2b, Jane C. Ginsburg Jan 1998

Authors As "Licensors" Of "Informational Rights" Under U.C.C. Article 2b, Jane C. Ginsburg

Faculty Scholarship

U.C.C. Articles 2B of the Uniform Commercial Code was designed primarily to regulate online and mass market transactions, particularly the licensing of computer software. Its effects, however, will extend to authors of works other than computer software. This Article considers the effects Article 2B would have on dealings between those authors and the exploiters of the authors' works. By reducing procedural barriers to the formation of licenses, Article 2B would make it all too easy for an author to assent to contract terms that may heavily favor an exploiter of the author's work. On the other hand ...


Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard Jan 1998

Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard

Faculty Scholarship

The Superfund program is perhaps environmental law's best Rorschach test, in which those who write about the national effort to clean up contaminated sites disclose as much about their own philosophies of justice, democracy, and economic efficiency as about environmental legislation. The ten books reviewed here show deep conflicts among these values. I argue, based on these disparate judgments, that many of the Superfund debates have an almost religious character. The law has been shaped to fit the view that demonic polluters were, and remain, at work. The law also reflects a sense of higher duty to future generations ...


Foreword, Robert E. Scott Jan 1998

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 ...


The Challenges Of Investigating Section 5k1.1 In Practice, Daniel Richman Jan 1998

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 ...


Foreword, Daniel Richman Jan 1998

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 ...


Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman Jan 1998

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 ...


Toward A Principled Interpretation Of The Commerce Clause, Thomas W. Merrill Jan 1998

Toward A Principled Interpretation Of The Commerce Clause, Thomas W. Merrill

Faculty Scholarship

Formalism is the jurisprudence of rules. Functionalism is the jurisprudence of balancing tests. If forced to choose between formalism and functionalism, I would probably come down on the side of formalism. I would not do so, however, because there is some meta-rule that prescribes formalism. Rather, it would be because formalism, on balance, has better consequences than functionalism – in other words, because there are good functionalist reasons to be a formalist.

Where I part company with many constitutional formalists is not so much over the desirability of rules as opposed to ad hoc balancingbut rather over the generality and the ...


Guns, Youth Violence, And Social Identity In Inner Cities, Jeffrey Fagan, Deanna L. Wilkinson Jan 1998

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 ...


Class Action Litigation In China, Benjamin L. Liebman Jan 1998

Class Action Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Class struggle has moved to China's courtrooms. Since the passage of China's 1991 Civil Procedure Law (CPL), which explicitly permits class action litigation, multiplaintiff groups have brought suits seeking compensation for harm caused by pollution, false advertising, contract violations, and securities law violations. Although administrative bodies continue to resolve most disputes in China, the increasing prevalence of class actions is one aspect of an explosion in civil litigation over the past decade. Class action litigation has the potential to alter the role courts play in adjudicating disputes, increase access to the courts, and facilitate the independence of the ...


Marriage As Relational Contract, Elizabeth S. Scott, Robert E. Scott Jan 1998

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 ...


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 Jan 1998

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 ...


Reflections In A Distant Mirror: Japanese Corporate Governance Through American Eyes, Ronald J. Gilson Jan 1998

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 ...