Law Commons^™

Learning To Counter Mass Incarceration, Brett Dignam

Faculty Scholarship

Limited access to education inside American prisons imposes a devastating condition of confinement that cripples both the offender and the community. The prolonged and empty time that characterizes prison today affords little mental stimulation, productive engagement, or preparation for post-release employment. Recent research and analysis has found that education during incarceration correlates with lower rates of recidivism and increases the likelihood and quality of post-release employment. There is a pronounced racially disparate dimension to these effects that are concentrated in communities where investment by the criminal justice system is extraordinarily high. Failure to provide education and the resulting higher rates …

Twenty Years Of Critical Race Theory: Looking Back To Move Forward, Kimberlé W. Crenshaw

Faculty Scholarship

This Article revisits the history of Critical Race Theory (CRT) through a prism that highlights its historical articulation in light of the emergence of postracialism. The Article will explore two central inquiries. This first query attends to the specific contours of law as the site out of which CRT emerged. The Article hypothesizes that legal discourse presented a particularly legible template from which to demystify the role of reason and the rule of law in upholding the racial order. The second objective is to explore the contemporary significance of CRT's trajectory in light of today's "post-racial" milieu. The Article posits …

Marriage As Monopoly: History, Tradition, Incrementalism, And The Marriage/Civil Union Distinction, Suzanne B. Goldberg

Faculty Scholarship

History and tradition have taken a prominent place as favored rationales for the exclusion of same-sex couples from marriage. Incrementalism likewise has been invoked to suggest that states can permissibly move “one step at a time” to redress the unequal status of same-sex couples, including by creating a civil union/marriage regime instead of providing marriage for all. Yet constitutional jurisprudence is clear that neither longevity nor tradition alone can justify the continuation of a discriminatory rule. This Article asks, then, what work these rationales perform in the marriage/civil union jurisprudence and debate, given their inadequacy from a doctrinal standpoint.

The …

Remapping The Charitable Deduction, David Pozen

Faculty Scholarship

If charity begins at home, scholarship on the charitable deduction has stayed at home. In the vast legal literature, few authors have engaged the distinction between charitable contributions that are meant to be used within the United States and charitable contributions that are meant to be used abroad. Yet these two types of contributions are treated very differently in the Code and raise very different policy issues. As Americans' giving patterns and the U.S. nonprofit sector grow increasingly international, the distinction will only become more salient.

This Article offers the first exploration of how theories of the charitable deduction apply …

Governance Failures Of The Enron Board And The New Information Order Of Sarbanes-Oxley, Jeffrey N. Gordon

Faculty Scholarship

Analysis of the corporate governance crisis that manifested itself in the United States at the turn of the millennium requires separating its various strands. The Enron Corporation ("Enron") debacle and the dot corn bubble and collapse, for example, share some common elements but in other ways they are quite different. In both cases investors became aggressively enamored of an unsustainable business model. In the dot com case it was the belief that an innovator in a rapidly growing market could attain powerful first mover advantages that would produce an eventual cascade of profits, so that a current and increasing stream …

An Institutional Emphasis, Lance Liebman

Faculty Scholarship

Professor Schwartz is an important scholar of the interface between the difficult moral concept of privacy and the new information technologies. Someday a book will tell the story of modem history through the lens of privacy: village lives well known to neighbors; the claims of the national state (taxes, military service); the social welfare state; and the possibilities and dangers of modem biology. As Paul Schwartz has written, DNA and other tools can tell us a great deal about ourselves and can improve our lives; they can also tell employers, drug companies, prospective in-laws, and the police things we prefer …

The Role Of Local Control In School Finance Reform, Richard Briffault

Faculty Scholarship

Local control is a puzzle, or rather, a series of related puzzles that has both structured and hindered the uncertain development of school finance reform. The first puzzle is really a paradox: courts and commentators generally assume that local control of education exists, that it is a basic organizational principle of American public elementary and secondary education, and a norm that must be taken into account when the existing school finance system is challenged. Yet for the law of local government generally, local control is the exception, not the rule. The ground rule of state-local relations is state control and …