Law Commons^™

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular …

Home Rule And Local Political Innovation, Richard Briffault

Faculty Scholarship

As demonstrated by San Francisco's recent adoption of instant runoff voting and New York City's recent expansion of its program for funding candidates for municipal office, local governments around the country have been actively engaged in examining and revising electoral and governmental processes. These local initiatives include alternative voting systems, campaign finance reforms, conflicts of interest codes, term limits, and revisions to tax, budget and legislative procedures. These local innovations illustrate both the capacity of local governments to restructure basic features of their political organization and their interest in doing so. Local political innovations also test the scope of local …

Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault

Faculty Scholarship

The law of school finance reform is conventionally described as consisting of three waves, each associated with a distinctive legal theory – a first wave based on federal equal protection arguments, a second equity wave based on state equal protection clauses, and a third adequacy wave based on state constitutional education articles. The asserted shift from equity to adequacy has been credited with the increasing success of school finance reform plaintiffs.

The wave metaphor and especially the differences between the second and third waves, however, have been sharply overstated – temporally, textually, in terms of litigation success, and as a …

Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan

Faculty Scholarship

The essay shows that the new deterrence studies are fraught with numerous technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider several relevant factors that drive murder rates such as drug epidemics, missing data on key variables in key states, the tyranny of a few outlier states and years, weak to non-existent tests of concurrent effects of incarceration, statistical confounding of murder rates with death sentences, failure to consider the general performance of the criminal justice system, artifactual results from truncated time frames, and the absence of any direct test of the components of contemporary theoretical constructions …

Social Contagion Of Violence, Jeffrey Fagan, Deanna L. Wilkinson, Garth Davies

Faculty Scholarship

Since 1968, violence and other crimes in New York City have followed a pattern of recurring epidemics. There have been three consecutive and contiguous cycles characterized by sharp increases in homicides and assaults to an elevated rate followed by equally steep declines to levels near the previous starting point. The most recent epidemic, from 1985-96, had the sharpest rise and steepest decline of the three epidemics. Popular explanations of the current epidemic fail to account for both the rise and fall of the decline, or for the repetitive pattern of these epidemics. In this article, we use public health data …

Reforming The Securities Class Action: On Deterrence And Its Implementation, John C. Coffee Jr.

Faculty Scholarship

Securities class actions impose enormous penalties, but they achieve little compensation and only limited deterrence. This is because of a basic circularity underlying the securities class action: When damages are imposed on the corporation, they essentially fall on diversified shareholders, thereby producing mainly pocket-shifting wealth transfers among shareholders. The current equilibrium benefits corporate insiders, insurers, and plaintiffs' attorneys, but not investors. The appropriate answer to this problem is not to abandon securities litigation, but to shift the incidence of its penalties so that, in the secondary market context, they fall less on the corporation and more on those actors who …

Dilution, Clarisa Long

Faculty Scholarship

Ever since the creation of federal dilution law, legal commentators have expressed consternation about this variation of the trademark entitlement. Prior to the advent of this form of protection, the owner of a mark could recover for trademark infringement under the Lanham Act only if the commercial use of its mark by someone else caused consumer confusion. By contrast, dilution grants trademark holders an injunctive remedy for the use of their famous marks by another even when consumers are not confused. This Article explores how federal dilution law is actually being judicially enforced. To do so, it examines the enforcement …

Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens

Faculty Scholarship

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational – they are a …

Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann

Faculty Scholarship

This Article explores the relationship between consumer credit markets and bankruptcy policy. In general, I argue that the causative relationships running between borrowing and bankruptcy compel a new strategy for policing the conduct of lenders and borrowers in modern consumer credit markets. The strategy must be sensitive to the role of the credit card in lending markets and must recognize that both issuers and cardholders are well placed to respond to the increased levels of spending and indebtedness. In the latter parts of the Article, I recommend mandatory minimum payment requirements, a tax on distressed credit card debt, and the …

The Politics Of Same-Sex Marriage Politics, Katherine M. Franke

Faculty Scholarship

In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and …

Gendered Subjects Of Transitional Justice, Katherine M. Franke

Faculty Scholarship

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and …

Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China's Peasants. The book exposed official malfeasance on Zhang's watch and the resultant peasant hardships. Zhang demanded an apology from the book's authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In 2000, Song Dianwen, a peasant, sued …

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Faculty Scholarship

This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques …

Broken Windows: New Evidence From New York City And A Five-City Social Experiment, Bernard Harcourt, Jens Ludwig

Faculty Scholarship

In 1982, James Q. Wilson and George Kelling suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. More than twenty years later, the three most populous cities in the United States – New York, Chicago, and, most recently, Los Angeles – have all adopted at least some aspect of Wilson and Kelling's theory, primarily through more aggressive enforcement of minor misdemeanor laws. Remarkably little, though, is currently known about the effect of broken windows policing on crime.

According to a recent National Research Council report, existing research does not provide …

From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard Harcourt

Faculty Scholarship

The incarceration revolution of the late twentieth century fueled ongoing research on the relationship between rates of incarceration and crime, unemployment, education, and other social indicators. In this research, the variable intended to capture the level of confinement in society was conceptualized and measured as the rate of incarceration in state and federal prisons and county jails. This, however, fails to take account of other equally important forms of confinement, especially commitment to mental hospitals and asylums.

When the data on mental hospitalization rates are combined with the data on imprisonment rates for the period 1928 through 2000, the incarceration …

The Problem Of Authority: Revisiting The Service Conception, Joseph Raz

Faculty Scholarship

The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained currency …

The Copyright Paradox, Tim Wu

Faculty Scholarship

Copyright law has become an important part of American industrial policy. Its rules are felt by every industry that touches information, and today that means quite a bit. Like other types of industrial policy, copyright in operation purposely advantages some sectors and disadvantages others. Consequently, today's copyright courts face hard problems of competition management, akin to those faced by the antitrust courts and the Federal Communications Commission.

How should courts manage competition using copyright? Over the last decade, writers have begun to try to understand the "other side" of copyright, variously called its innovation policy, communications policy, or regulatory side.Here …

The World Trade Law Of Censorship And Internet Filtering, Tim Wu

Faculty Scholarship

Consider the following events, all from the last five years: (1) An American newsmagazine, Barron's, posts an unflattering profile of an Australian billionaire named Joseph Gutnick on its web site – the publisher, Dow Jones, Inc., is sued in Australia and forced to settle; (2) Mexico's incumbent telephone company, Telmex, blocks Mexicans from reaching the web site of the Voice-over-IP firm Skype; (3) the United States begins a major crackdown on web gambling services, causing serious economic damage to several small Caribbean economies; (4) the Chinese government prevents its citizens from using various foreign Internet services, including foreign e-mail and …

Emergency Exemptions From Environmental Laws After Disasters, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes had their origins in disasters. And when disasters strike, the environmental laws come into play in the response. Some have urged Congress to adopt emergency exemptions so that the environmental laws do not interfere with rescue and recovery.

This article explains how disasters helped create our current statutes, and then describes the role that environmental laws played in the immediate response to the September 11 attacks and Hurricane Katrina. It catalogs the multiple exemptions that already exist in the current environmental statutes and regulations and then summarizes the exemptions that were proposed after Hurricane Katrina.

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Faculty Scholarship

Forever, it seems, the power to shape public morality has been seen as central to American governance. As one of the morality tradition's chief promoters, the Supreme Court itself has regularly endorsed and applauded government's police power to regulate the public's morality along with the public's health and welfare.

How, then, can we make sense of the Court's declaration in Lawrence v. Texas that the state's interest in preserving or promoting a particular morality among its constituents did not amount even to a legitimate interest to justify a Texas law criminalizing sexual intimacy between consenting adults? Has the Court unforeseeably …

William Hubbs Rehnquist, Thomas W. Merrill

Faculty Scholarship

We will be debating the legacy of Chief Justice William Hubbs Rehnquist as long as there is a Supreme Court. At the heart of that debate is a puzzle: How could a man so staunchly committed to judicial restraint preside over a Court that became during his tenure on the bench a more powerful actor in American political life than it was when he was appointed?