Law Commons^™

Oscar Schachter (1915-2003), Lori Fisler Damrosch

Faculty Scholarship

Among ''jurisconsults of recognized competence in international law" and "most highly qualified publicists of the various nations, " no one in the second half of the twentieth century did more than Oscar Schachter to influence both the theory and the practice of international law, especially the law of the United Nations Charter. When the centennial of the American Society of International Law arrives in two years, we will have occasion to reflect on his contributions to this Journal and many other endeavors of the Society, across a long and vigorous life.

The Role Of Well-Being, Joseph Raz

Faculty Scholarship

"Well-being" signifies the good life, the life which is good for the person whose life it is. I have argued that well-being consists in a wholehearted and successful pursuit of valuable relationships and goals. This view, a little modified, is defended , but the main aim of the article is to consider the role of well-being in practical thought. In particular I will examine a suggestion which says that when we care about people, and when we ought to care about people, what we do, or ought to, care about is their well-being. The suggestion is indifferent to who cares …

Neighborhood, Crime, And Incarceration In New York City, Jeffery Fagan, Valerie West, Jan Holland

Faculty Scholarship

Several new studies suggest that social and spatial incarceration of young males has become part of the developmental ecology of adolescence in the nation's poorest neighborhoods. This concentration began in the 1970s, and has grown steadily through the last quarter century.The story of young men such as Cesar in Random Family illustrates the pervasive effects of both direct and vicarious prison experiences for young men and women in poor neighborhoods. Studies of street life such as Random Family, Code of the Streets, and American Project show how these experiences are now internalized in the social and psychological fabric of neighborhood …

The Poison Pill In Japan: The Missing Infrastructure, Ronald J. Gilson

Faculty Scholarship

The coming of hostile takeovers to Japan has been anticipated, and anticipated, and anticipated. Each report of a reduction in the size of crossholdings among Japanese companies and in the size of Japanese bank stockholdings in their clients has given rise to an expectation that now, at last, hostile offers would emerge. It is not surprising that commentators looked forward, optimistically, to the arrival of a potentially disruptive takeover technique. The extended Japanese recession, together with management resistance to internally implemented restructurings and the barriers to externally imposed restructurings, has created the potential for substantial private and social gain from …

Equality Without Tiers, Suzanne B. Goldberg

Faculty Scholarship

The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court's most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.

Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under way …

Doing Originalism, Henry Paul Monaghan

Faculty Scholarship

It is an honor to participate in celebrating Justice Ginsburg's tenth anniversary on the Court. She is a Justice whom I admire on many fronts; moreover, she continues to be a vital part of this school as this Symposium itself attests. But an invitation to participate also presents a challenge: This session is about her and her contributions to various aspects of the Court's jurisprudence. I know Justice Ginsburg well enough to believe that nothing would cause her more discomfort than to be in an audience with herself as the sole topic. So I thought that my remarks should be …

From Rethinking To Internationalizing Criminal Law, George P. Fletcher

Faculty Scholarship

Writing Rethinking Criminal Law ("Rethinking") was a gamble. No one had ever written a serious book on comparative criminal law – in English or in any other language. No one had ever addressed English-speaking readers with the argument that some other system of legal thought – espoused by a nation defeated in a major war just thirty years before – had a superior literature on criminal law and a more refined way of thinking about the structure of criminal offenses. No one had tried to present the system of criminal law as though it were a species of …

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 …

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 transaction, …

Globalizing Corporate Governance: Convergence Of Form Or Function, Ronald J. Gilson

Faculty Scholarship

Globalization has led to a remarkable resurgence in the study of comparative corporate governance. This area of scholarship had been largely the domain of taxonomists, intent on cataloguing the central characteristics of national corporate governance systems, and then classifying different systems based on the specified attributes. The result was an interesting, if perhaps somewhat dry, enterprise. We learned that national corporate governance systems differed dramatically along a number of seemingly important dimensions. Some corporate governance systems, notably those of the United States and other Anglo-Saxon countries, are built on the foundation of a stock market-centered capital market. Other systems, like …

Be Careful What You Wish For: Legal Sanctions And Public Safety Among Adolescent Offenders In Juvenile And Criminal Court, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman

Faculty Scholarship

Three decades of legislative activism have resulted in a broad expansion of states' authority to transfer adolescent offenders from juvenile to criminal (adult) courts. At the same time that legislatures have broadened the range of statutes and lowered the age thresholds for eligibility for transfer, states also have reallocated discretion away from judges and instituted simplified procedures that permit prosecutors to elect whether adolescents are prosecuted and sentenced in juvenile or criminal court. These developments reflect popular and political concerns that relatively lenient or attenuated punishment in juvenile court violates proportionality principles for serious crimes committed by adolescents, and is …

Contracts – Only With Consent, Ronald J. Mann

Faculty Scholarship

My friend and former colleague Omri Ben-Shahar has established a reputation for providing nuanced and well-grounded applications of economic analysis to important problems of contract law. In recent years, he has undertaken the ambitious task of exploring a significant topic at the boundary of contract law: liability for problems that arise out of efforts to form a contract. The essay to which I reply, Contracts Without Consent: Exploring a New Basis for Contractual Liability, is his second work on that topic, following his 2001 article with Lucian Bebchuk entitled Precontractual Reliance. Collectively, these pieces provide a comprehensive analysis …

The Future Of American Sentencing: A National Roundtable On Blakely, Ronald J. Allen, Albert Alschuler, Douglas A. Berman, Stephanos Bibas, Frank O. Bowman Iii, Daniel P. Blank, Charles R. Breyer, Steven Chanenson, Michael R. Dreeben, Margareth Etienne, Jeffrey L. Fisher, Patrick Keenan, Joseph E. Kennedy, Nancy J. King, Susan J. Klein, Rory K. Little, Marc L. Miller, J. Bradley O'Connell, David Porter, Kevin R. Reitz, Daniel C. Richman, Kate Stith, Barbara Tombs, Richard B. Walker, Robert Weisberg, Robert F. Wright Jr., Jonathan Wroblewski, David N. Yellen

Faculty Scholarship

In the wake of the dramatic Supreme Court decision in Blakely v. Washington, Stanford Law School convened an assembly of the most eminent academic and professional sentencing experts in the country to jointly assess the meaning of the decision and its implications for federal and state sentencing reform. The event took place on October 8 and 9, just a few months after Blakely came down and the very week that the Supreme Court heard the arguments in United States v. Booker and United States v. Fanfan, the cases that will test Blakely's application to the Federal Sentencing Guidelines. Thus the …

Solving Problems Vs. Claiming Rights: The Pragmatist Challenge To Legal Liberalism, William H. Simon

Faculty Scholarship

Recent developments in both theory and practice have inspired a new understanding of public interest lawyering. The theoretical development is an intensified interest in Pragmatism. The practical development is the emergence of a style of social reform that seeks to institutionalize the Pragmatist vision of democratic governance as learning and experimentation. This style is reflected in a variety of innovative responses to social problems, including drug courts, ecosystem management, and "new accountability" educational reform. The new understanding represents a significant challenge to an influential view of law among politically liberal lawyers over the past fifty years. That view, Legal Liberalism, …

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

Faculty Scholarship

Elsewhere Garrett and Liebman have recounted that though James Madison is considered "the Father of the Constitution," his progeny disappointed him because it was defenseless against self-government's "mortal disease " – the oppression of minorities by local majorities – because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment's Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered "effectual." This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity …

Unconstitutional Police Searches And Collective Responsibility, Bernard E. Harcourt

Faculty Scholarship

Then the police officer told the suspect, without just cause, "I bet you are hiding [drugs] under your balls. If you have drugs under your balls, I am going to fuck your balls up."

Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their groundbreaking article, "Suspect Searches: Assessing Police Behavior Under the U.S. Constitution." By their conservative estimate, 30% of the 115 police searches they studied – searches that were conducted by officers in a department ranked in the top 20% nationwide, that were systematically observed by trained field observers, and that were coded …

Measuring Share Price Accuracy, Merritt B. Fox

Faculty Scholarship

This Article concerns how to measure share price accuracy. It is prompted by the fact that many scholars believe that the prices established in the stock market affect the efficiency of the real economy. In their view, more accurate prices increase the amount of value added by capital-utilizing enterprises as these enterprises use society's scarce resources for the production of goods and services. More accurate share prices help improve both the quality of choice among new proposed investment projects in the economy and the operation of existing real assets currently in corporate hands.

The proposition that more accurate share prices …

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" operation of …

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. This …

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 expresses …

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 review of the 823 …

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 …