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Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth F. Emens Jan 2004

Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy's core institution and to express views on who should be included within it. The focus of this article is different. Like an "unmannerly wedding guest," this article invites the reader to pause amidst the whirlwind of marriage talk and to think critically about monogamy and its alternatives.


An Empirical Investigation Of Liquidation Choices Of Failed High Tech Firms, Ronald J. Mann Jan 2004

An Empirical Investigation Of Liquidation Choices Of Failed High Tech Firms, Ronald J. Mann

Faculty Scholarship

Perhaps it is merely a reflection of my interests, but to my mind, empirical research requires a certain risk-preferent boldness. I like projects that explore how and why particular businesses make important decisions. After I identify a topic, I typically try to gather as much qualitative and quantitative information about it as I can, with the expectation that when I have learned a great deal about the topic something interesting will emerge that relates in some important way to an ongoing academic debate. Those projects usually do not begin with a specific hypothesis to prove or disprove-often either answer will ...


Regulating Internet Payment Intermediaries, Ronald J. Mann Jan 2004

Regulating Internet Payment Intermediaries, Ronald J. Mann

Faculty Scholarship

The Internet has produced significant changes in many aspects of commercial interaction. The rise of Internet retailers is one of the most obvious changes, but oddly enough the overwhelming majority of commercial transactions facilitated by the Internet use a conventional payment system. Thus, even in 2002, shoppers made at least eighty percent of Internet purchases with credit cards. To many observers, this figure has come as a surprise. The early days of the Internet heralded a variety of proposals for entirely new payment systems – generically described as electronic money – that would use wholly electronic tokens that consumers could issue, transfer ...


More Is Less, Philip A. Hamburger Jan 2004

More Is Less, Philip A. Hamburger

Faculty Scholarship

Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the ...


The New Censorship: Institutional Review Boards, Philip A. Hamburger Jan 2004

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?


Partnoy's Complaint: A Response, John C. Coffee Jr. Jan 2004

Partnoy's Complaint: A Response, John C. Coffee Jr.

Faculty Scholarship

My article attempts to strike a balance and find a middle ground between the polar positions of those who favor strict liability (of whom Professor Partnoy is probably the most notable) and recent critics who believe it would produce market failure. Necessarily, those who take a middle position are exposed to fire from both sides. Although I admire Professor Partnoy's originality and incisive style, I do not believe that the market could easily survive his reforms and suspect that he has undervalued the hidden costs of strict liability. Deterrence is needed – but there can be too much of a ...


Gatekeeper Failure And Reform: The Challenge Of Fashioning Relevant Reforms, John C. Coffee Jr. Jan 2004

Gatekeeper Failure And Reform: The Challenge Of Fashioning Relevant Reforms, John C. Coffee Jr.

Faculty Scholarship

Securities markets have long employed "gatekeepers" – independent professionals who pledge their reputational capital – to protect the interests of dispersed investors who cannot easily take collective action. The clearest examples of such reputational intermediaries are auditors and securities analysts, who verify or assess corporate disclosures in order to advise investors in different ways. But during the late 1990s, these protections seemingly failed, and a unique concentration of financial scandals followed, all involving the common denominator .of accounting irregularities. What caused this sudden outburst of scandals, involving an apparent epidemic of accounting and related financial irregularities, that broke over the financial markets ...


What Caused Enron? A Capsule Social And Economic History Of The 1990s, John C. Coffee Jr. Jan 2004

What Caused Enron? A Capsule Social And Economic History Of The 1990s, John C. Coffee Jr.

Faculty Scholarship

The sudden explosion of corporate accounting scandals and related financial irregularities that burst over the financial markets between late 2001 and the first half of 2002 – Enron, WorldCom, Tyco, Adelphia and others – raises an obvious question: Why now? What explains the concentration of financial scandals at this moment in time? Much commentary has rounded up the usual suspects and placed the blame on a decline in business morality, an increase in "infectious greed," or other similarly subjective trends that cannot be reliably measured. Although none of these possibilities can be dismissed out of hand, approaches that simply reason backwards, proceeding ...


The Relative Costs Of Incorporating Trade Usage Into Domestic Versus International Sales Contracts: Comments On Clayton Gillette, Institutional Design And International Usages Under The Cisg, Avery W. Katz Jan 2004

The Relative Costs Of Incorporating Trade Usage Into Domestic Versus International Sales Contracts: Comments On Clayton Gillette, Institutional Design And International Usages Under The Cisg, Avery W. Katz

Faculty Scholarship

Clayton Gillette's paper on the use of trade usage in reported disputes arising under the United Nations Convention on Contracts for the International Sale of Goods ("CISG") presents a challenge to recent scholarly critiques of modern contractual interpretation. As Gillette explains, much recent writing by economically influenced US scholars in contracts and commercial law has argued in favor of more formalistic methods of interpretation, and against the overwhelming trend of the last half of the twentieth century: a trend toward a more contextual interpretative approach that takes into account a variety of evidence, including the business purpose of the ...


Balance In The Taxation Of Derivative Securities: An Agenda For Reform, David M. Schizer Jan 2004

Balance In The Taxation Of Derivative Securities: An Agenda For Reform, David M. Schizer

Faculty Scholarship

It is well understood that aggressive tax planning with derivatives threatens the U.S. income tax system. The conventional solution to this threat has been consistency, meaning that the same tax treatment should apply to all economically comparable bets, regardless of the form used. Yet familiar political and administrative barriers stand in the way of achieving this lofty goal.

This Article develops a reform agenda to eliminate tax planning without requiring consistency. Policymakers should strive instead for a new goal, which this Article calls "balance": For each risky position, the treatment of gains should match the treatment of losses. For ...


Embedded Options In The Case Against Compensation In Contract Law, Robert E. Scott, George G. Triantis Jan 2004

Embedded Options In The Case Against Compensation In Contract Law, Robert E. Scott, George G. Triantis

Faculty Scholarship

Although compensation is the governing principle in contract law remedies, it has tenuous historical, economic, and empirical support. A promisor's right to breach and pay damages is only a subset of a larger family of termination rights that do not purport to compensate the promisee for losses suffered when the promisor walks away from the contemplated exchange. These termination rights can be characterized as embedded options that serve important risk management functions. We show that sellers often sell insurance to their buyers in the form of these embedded call options, and that termination fees, including damages, are in essence ...


Divorcing Marriage From Procreation – Goodridge V. Department Of Public Health Case, Jamal Greene Jan 2004

Divorcing Marriage From Procreation – Goodridge V. Department Of Public Health Case, Jamal Greene

Faculty Scholarship

Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process ...


The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke Jan 2004

The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Franke offers an account of the Supreme Court's decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Court's earlier reproductive rights cases, but instead announces a kind of privatized liberty right that affords gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke ...


The Economics Of Form And Substance In Contract Interpretation, Avery W. Katz Jan 2004

The Economics Of Form And Substance In Contract Interpretation, Avery W. Katz

Faculty Scholarship

For over a century, legal commentators have debated the relative merits of formal and substantive approaches to the interpretation of contracts; in recent years, the debate has increasingly been conducted in the language of the economic approach to contract law. While this new wave of scholarship has been relatively successful in relating the traditional debates over formalism to specific transactional and institutional problems such as imperfect information, it has been less productive in terms of generating useful legal or policy recommendations. This Essay proposes a different approach: one that focuses on private rather than public legal decisionmakers as its primary ...


Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett Jan 2004

Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett

Faculty Scholarship

James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease" – the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radical structural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior ...


Rethinking Article I, Section I: From Nondelegation To Exclusive Delegation, Thomas W. Merrill Jan 2004

Rethinking Article I, Section I: From Nondelegation To Exclusive Delegation, Thomas W. Merrill

Faculty Scholarship

The first substantive clause of the Constitution – providing that "[all legislative Powers herein granted shall be vested in a Congress" – is associated with two postulates about the allocation of legislative power. The first is the nondelegation doctrine, which says that Congress may not delegate legislative power. The second is the exclusive delegation doctrine, which says that only Congress may delegate legislative power. This Article explores the textual, historical, and judicial support for these two readings of Article I, Section 1, as well as the practical consequences of starting from one postulate as opposed to the other. The Article concludes that ...


Destabilization Rights: How Public Law Litigation Succeeds, Charles F. Sabel, William H. Simon Jan 2004

Destabilization Rights: How Public Law Litigation Succeeds, Charles F. Sabel, William H. Simon

Faculty Scholarship

"Public law litigation" – civil rights advocacy seeking to restructure public agencies - has changed course over the last three decades. It has moved away from remedial intervention modeled on command-and-control bureaucracy toward a kind of intervention that can be called "experimentalist." Instead of top-down, fixed-rule regimes, the experimentalist approach emphasizes ongoing stakeholder negotiation, continuously revised performance measures, and transparency. Experimentalism is evident in all the principal areas of public law intervention – schools, mental health institutions, prisons, police, and public housing. This development has been substantially unanticipated and unnoticed by both advocates and critics of public law litigation. In this Article, we ...


Requiem, Henry Paul Monaghan Jan 2004

Requiem, Henry Paul Monaghan

Faculty Scholarship

Besides being brief, it is not apparent what one should say. No doubt due to my own upbringing, I cannot view this an occasion for a celebration of a life that ended just a handful of hours ago. Nor do I view this an occasion for a discussion of John's work. The New York Times provided a splendid account of that. I would add only that John received an honorary LL.D. from Yale six months ago. The opening sentence of the accompanying citation said it all: "Your work set the standard for constitutional law scholarship for our generation ...


John Ely: The Harvard Years, Henry Paul Monaghan Jan 2004

John Ely: The Harvard Years, Henry Paul Monaghan

Faculty Scholarship

John Ely's life ended too soon, on October 25, a few weeks before his sixty-fifth birthday. Six months earlier, Yale had awarded him an honorary Doctor of Laws. The citation accompanying the award stated, "Your work set the standard for constitutional scholarship for our generation." It is, I believe, particularly appropriate that this Law Review dedicate an issue to John's memory. John taught at Harvard Law School from 1973 to 1982. During that time he produced his signature work, Democracy and Distrust, and the articles most closely associated with his name, several of which appeared in this Review.


Private Property And The Politics Of Environmental Protection, Thomas W. Merrill Jan 2004

Private Property And The Politics Of Environmental Protection, Thomas W. Merrill

Faculty Scholarship

Private property plays two opposing roles in stories about the environment. In the story favored by most environmentalists, private property is the bad guy. It balkanizes an interconnected ecosystem into artificial units of individual ownership. Owners of these finite parcels have little incentive to invest in ecosystem resources and every incentive to dump polluting wastes onto other parcels. Only by relocating control over natural resources in some central authority like the federal government, can we make integrated decisions designed to preserve the health of the entire ecosystem. For these traditional environmentalists, private property is the problem; public control is the ...


Marbury V. Madison As The First Great Administrative Law Decision, Thomas W. Merrill Jan 2004

Marbury V. Madison As The First Great Administrative Law Decision, Thomas W. Merrill

Faculty Scholarship

Marbury v. Madison is our foremost symbol of judicial power. Not only is the decision regarded as the root of judicial authority to strike down statutes as violating the Constitution; it is also taken to mean that "the federal judiciary is supreme in the exposition of the Constitution." In other words, Marbury has come to stand for the proposition that courts should enforce their own understanding of the meaning of the Constitution, without deferring or even paying much attention to the views of the other branches.

I will not in this essay engage in yet another analysis of Marbury's ...


Nine Justices, Ten Years: A Statistical Retrospective, Robert J. Jackson Jr., Thiruvendran Vignarajah Jan 2004

Nine Justices, Ten Years: A Statistical Retrospective, Robert J. Jackson Jr., Thiruvendran Vignarajah

Faculty Scholarship

The 2003 Term marked an unprecedented milestone for the Supreme Court: for the first time in history, nine Justices celebrated a full decade presiding together over the nation's highest court.' The continuity of the current Court is especially striking given that, on average, one new Justice has been appointed approximately every two years since the Court's expansion to nine members in 1837.2 Although the Harvard Law Review has prepared statistical retrospectives in the past,3 the last decade presents a rare opportunity to study the Court free from the disruptions of intervening appointments.

Presented here is a ...


Self-Enforcing International Agreements And The Limits Of Coercion, Robert E. Scott, Paul B. Stephan Jan 2004

Self-Enforcing International Agreements And The Limits Of Coercion, Robert E. Scott, Paul B. Stephan

Faculty Scholarship

International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. To be sure, almost all academic discussions on the subject begin by asking whether international law constitutes "law." But the category of all "international law" is too big and heterogeneous to permit useful analysis. Whether to regard, say, the rules governing the conduct of war or international humanitarian law as "law" presents radically different issues than analyzing the legal character of the Treaty of Rome (the constitutive instrument of the European Community), or the Warsaw Convention (the instrument governing contracts for the carriage ...


The Origins Of The American Public Trust Doctrine: What Really Happened In Illinois Central, Joseph D. Kearney, Thomas W. Merrill Jan 2004

The Origins Of The American Public Trust Doctrine: What Really Happened In Illinois Central, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The public trust doctrine has always been controversial. The general rule in American law favors ownership of natural resources as private property. The public trust doctrine, a jarring exception of uncertain dimensions, posits that some resources are subject to a perpetual trust that forecloses private exclusion rights. For environmentalists and preservationists who view private ownership as a source of the degradation of our natural and historical resources, the public trust doctrine holds out the hope of salvation through what amounts to a judicially enforced inalienability rule that locks resources into public ownership. For those who view private property as the ...


The Option Element In Contracting, Avery W. Katz Jan 2004

The Option Element In Contracting, Avery W. Katz

Faculty Scholarship

Most contractual arrangements are either structured as options or include options as important elements. As a result, many of the major doctrines of contract law effectively operate to create or to set the terms of such options. For instance, it has long been recognized that a contract that is enforceable only through monetary liability operates in practice as an option, because as a legal matter the promisor retains the power either to perform or to breach and pay damages. Similarly, the doctrine of promissory estoppel, which attaches liability to precontractual statements in cases where they are reasonably relied upon, effectively ...


The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg Jan 2004

The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg

Faculty Scholarship

If you inquired among the general public, “What does U.S. copyright law protect?” many people might start by grumbling that it overprotects piggish record companies. Calming slightly, they might next reply that copyright protects authors' rights and that among those is the right to be recognized as the author of the work. Indeed, few interests seem as fundamentally intuitive as that authorship credit should be given where credit is due. For example, in prelapsarian, pre-Napster days, the act of copyright infringement in which a youthful individual most likely engaged was probably plagiarism: there, lifting another author's text may ...


Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard Harcourt Jan 2004

Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard Harcourt

Faculty Scholarship

New reporting requirements and data collection efforts by over four hundred law enforcement agencies across the country – including entire states such as Maryland, Missouri, and Washington – are producing a continuous flow of new evidence on highway police searches. For the most part, the data consistently show disproportionate searches of African-American and Hispanic motorists in relation to their estimated representation on the road. Economists, civil liberties advocates, legal and constitutional scholars, political scientists, lawyers, and judges are poring over the new data and reaching, in many cases, quite opposite conclusions about racial profiling.


On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars (A Call To Historians), Bernard Harcourt Jan 2004

On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars (A Call To Historians), Bernard Harcourt

Faculty Scholarship

Say the words "gun registration" to many Americans – especially pro-gun Americans, including the 3.5 million-plus members of the National Rifle Association ("NRA") – and you are likely to hear about Adolf Hitler, Nazi gun laws, gun confiscation, and the Holocaust. More specifically, you are likely to hear that one of the first things that Hitler did when he seized power was to impose strict gun registration requirements that enabled him to identify gun owners and then to confiscate all guns, effectively disarming his opponents and paving the way for the genocide of the Jewish population. "German firearm laws and hysteria ...


"You Are Entering A Gay And Lesbian Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers – [Raising Questions About Lawrence, Sex Wars, And The Criminal Law], Bernard Harcourt Jan 2004

"You Are Entering A Gay And Lesbian Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers – [Raising Questions About Lawrence, Sex Wars, And The Criminal Law], Bernard Harcourt

Faculty Scholarship

The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal ...


Regulating Teenage Abortion In The United States: Politics And Policy, Carol Sanger Jan 2004

Regulating Teenage Abortion In The United States: Politics And Policy, Carol Sanger

Faculty Scholarship

Thirty-four US states currently require pregnant minors either to notify their parents or get their consent before having a legal abortion. The Supreme Court has upheld the constitutionality of theses statutes provided that minors are also given an alternative mechanism for abortion approval that does not involve parents. The mechanism used is the 'judicial bypass hearing' at which minors persuade judges that they are mature and informed enough to make the abortion decision themselves. While most minors receive judicial approval, the hearings intrude into the most personal aspects of a young woman's life. The hearings, while formally civil in ...