Law Commons^™

The Gravity Of Legal Diffusion, Anu Bradford, Adam S. Chilton, Katerina Linos

Faculty Scholarship

A persistent empirical finding is that bilateral trade between two countries is proportional to the size of their economies and inversely proportional to their geographic distance. We hypothesize that a similar pattern is likely to hold for the diffusion of laws. We specifically argue that countries’ propensity to update their laws to converge with the leading regulator in a given policy area is likely to be proportional to the size of their economies and inversely proportional to their geographic distance. We then empirically test this theory in the area of antitrust and assess countries’ convergence to the world’s leading antitrust …

Terry'S Original Sin, Jeffrey Fagan

Faculty Scholarship

In Mapp v. Ohio, the U.S. Supreme Court extended the due process protections of the exclusionary rule to include all "constitutionally unreasonable searches" that were done without a basis of probable cause. In the seven years after Mapp, when homicide rates in the U.S. nearly doubled, riots broke out in at least forty-seven U.S. cities. During the same era, a heroin epidemic gripped the nation's urban centers, giving rise to street drug markets and associated violence and pressures on law enforcement to curb those markets. As violence increased, a turn in the nation's political culture questioned Mapp's restraints on …

Of Constituents And Contributors, Richard Briffault

Faculty Scholarship

In the stirring conclusion to his plurality opinion in McCutcheon v. Federal Election Commission, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the "political responsiveness at the heart of the democratic process." Quoting Edmund Burke's statement in his famous Speech to the Electors of Bristol that a representative's judgment should be informed by "the closest correspondence, and the most unreserved communication with his constituents," the Chief Justice eloquently declaimed that "[c]onstituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can …

Radical Thought From Marx, Nietzsche, And Freud, Through Foucault, To The Present: Comments On Steven Lukes’S In Defense Of "False Consciousness", Bernard E. Harcourt

Faculty Scholarship

Steven Lukes offers a precise, succinct, and forceful defense of the idea of "false consciousness" in his provocative essay by that name, In Defense of "False Consciousness" People can be systematically mistaken about their own best interest, Lukes contends – or, in his words, "they can have systematically distorted beliefs about the social order and their own place in it that work systematically against their interests." It is not just that sometimes people knowingly but regretfully make compromises, nor simply that they face no alternative choices; people are at times factually mistaken about what will promote their best interest. "There …

On Copyright's Authorship Policy, Tim Wu

Faculty Scholarship

Making authors the masters of their own destiny has long been a stated aspiration of copyright. Yet more often than not, the real subjects of American copyright are distributors – book publishers, record labels, broadcasters, and others – who control the rights, bring the lawsuits, and take copyright as their "life-sustaining protection." Much of modern American copyright history, and particularly its legislative history, revolves on distributors either demanding more industry protection or fighting amongst themselves. It is distributors who make the great financial investments in copyrighted works, and distributors who arguably most need the incentives and protections that the system …

Policing L.A.'S Skid Row: Crime And Real Estate Redevelopment In Downtown Los Angeles [An Experiment In Real Time], Bernard E. Harcourt

Faculty Scholarship

In this article, I document the present. I make a record, with photographs, interviews, maps, and observations of L.A.'s Skid Row as it is today. Drawing on the tradition and methods of critical socio-legal studies, I also explore the constitutive dimensions of deviance. I investigate the possible attraction that disorderliness and criminality may have to today's urban pioneers. I explore the idea that deviance and disorder may become, in some corners, a consumable good to urban dwellers. And I do this by drawing on numerous hours of personal observation on the streets of L.A.'s Skid Row, on interviews of service …

Seeing Crime And Punishment Through A Sociological Lens: Contributions, Practices, And The Future, Calvin Morill, John Hagan, Bernard E. Harcourt, Tracey L. Meares

Faculty Scholarship

There is a rich intellectual history to the sociological study of crime and punishment that encompasses multiple and interrelated traditions. Some of these traditions trace their roots to the European social theorists of the nineteenth century, particularly Emile Durkheim, Max Weber, and Karl Marx. Although only Durkheim and Weber systematically studied law (and only Durkheim actually studied punishment), all three social theorists facilitated the development of sociological research and theory on crime and punishment. Durkheim's Suicide: A Study in Sociology for example, investigated the relationship between social integration and suicide rates, which, in turn, provided a model of inquiry for …

Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott

Faculty Scholarship

Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans, the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women's social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that, for the most part, lasted for the joint lives of the spouses. It was the only option for a socially sanctioned intimate relationship and was the setting in which …

Police, Community Caretaking, And The Fourth Amendment, Debra A. Livingston

Faculty Scholarship

The local police have multiple responsibilities, only one of which is the enforcement of criminal law. Police gather eyewitness accounts in the aftermath of a shooting, but they also assist lost children in locating their parents. Police identify and arrest those who have committed felonies, but they also respond to heart attack victims and help inebriates find their way home. Sometimes police check on the well-being of elderly citizens. As Professor Goldstein said some twenty years ago, "The total range of police responsibilities is extraordinarily broad .... Anyone attempting to construct a workable definition of the police role will typically …

Race And Representation After Miller V. Johnson, Richard Briffault

Faculty Scholarship

This Article considers the Supreme Court's two approaches to race and representation: the constrained proportionality of the vote-dilution cases and the strict scrutiny of racially motivated districting. Part I traces the development of these two doctrines, examines their conceptual underpinnings, and considers some of the questions the Court will have to answer as it elaborates its new approach to the use of race in the design of electoral systems.

Part II explores the tension between the Court's two approaches. The concern with racial motivation proceeds from an underlying normative assumption about the place of race in politics that is profoundly …

Why There Should Be An Independent Decennial Commission On The Press, Lee C. Bollinger

Faculty Scholarship

In 1947, the Commission on Freedom of the Press chaired by Robert M. Hutchins, published its report entitled "A Free and Responsible Press:" Sharply criticized by the media when published, the Hutchins Commission Report (as it has come to be known) seems to have assumed only minor status within the history of freedom of the press in this century, as well as among reports on social problems generally. In this article, I will consider whether the Hutchins Commission Report deserves a different fate. Given the media's usually astounding self-preoccupation, the fact that the Report was about the "press" would lead …

Demarginalizing The Intersection Of Race And Sex: A Black Feminist Critique Of Antidiscrimination Doctrine, Feminist Theory And Antiracist Politics, Kimberlé W. Crenshaw

Faculty Scholarship

One of the very few Black women's studies books is entitled All the Women Are White; All the Blacks Are Men, But Some of Us are Brave. I have chosen this title as a point of departure in my efforts to develop a Black feminist criticism because it sets forth a problematic consequence of the tendency to treat race and gender as mutually exclusive categories of experience and analysis. In this talk, I want to examine how this tendency is perpetuated by a single-axis framework that is dominant in antidiscrimination law and that is also reflected in feminist theory and …

Economic Perspectives On Trade In Professional Services, Jagdish N. Bhagwati

Faculty Scholarship

This paper will bring an economist's perspective to bear on three questions raised at this conference by some of the other important contributions:

1. How are services different from goods;
2. What implications do these differences have for the rules we seek to negotiate to free trade in services; and
3. How can we induce the key developing countries, such as Brazil, Egypt and India, which have generally opposed liberalization of trade in services, to support it?

Answers to these questions will naturally bear critically on the narrower question of international trade in professional, and especially legal, services, since recommendations and decisions on …