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Articles 1 - 30 of 34
Full-Text Articles in Law
Integrity And The Incongruities Of Justice: A Review Of Daniel Markovits, A Modern Legal Ethics, Benjamin C. Zipursky
Integrity And The Incongruities Of Justice: A Review Of Daniel Markovits, A Modern Legal Ethics, Benjamin C. Zipursky
Faculty Scholarship
Daniel Markovits’ recent book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age, begins by articulating an ethical quandary common to litigators: how can I advocate zealously for a client whose story might not be true and whose causes might not be just? In Markovits’ hands, the dilemmas of the adversary advocate are transformed into a philosophical puzzle about the nature of integrity and the very idea of fidelity to a client. Lawyers face a far more onerous ethical burden than is sometimes recognized, Markovits argues, for the adversary advocate in our legal system is professionally obligated to lie …
Desert, Deontology, And Vengeance First Annual Edward J. Shoen Leading Scholars Symposium: Paul H. Robinson, Youngjae Lee
Desert, Deontology, And Vengeance First Annual Edward J. Shoen Leading Scholars Symposium: Paul H. Robinson, Youngjae Lee
Faculty Scholarship
In a series of recent writings, Paul Robinson has defended “empirical desert” as the way of deriving distributive principles for determining who should be punished and by how much. Desert is, of course, an idea with a long history, and its precise role in criminal law has been much debated. In addressing various criticisms of desert in criminal law, Robinson distinguishes empirical desert from what he calls “deontological desert” and “vengeful desert.” Robinson’s strategy, which I call “divide and deflect,” fights off various objections traditionally leveled against the use of desert in criminal law by arguing that most of those …
Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky
Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky
Faculty Scholarship
Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that …
Gathering Moss: The Nrla's Resistance To Legislative Change , James J. Brudney
Gathering Moss: The Nrla's Resistance To Legislative Change , James J. Brudney
Faculty Scholarship
Why has the NLRA been so resistant to legislative change for more than 60 years? How was Congress able to enact two major labor relations laws within a 12-year period (1935 and 1947) but then unable to approve proposed reforms in the years since 1947? In an effort to answer these questions, the article closely examines contemporaneous newspaper accounts from the 1935 and 1947 legislative “successes” as well as from two more recent congressional “failures” in 1978 and 1992. The article’s examination proceeds based on an analytic framework borrowed from political scientist John Kingdon that posits a recurring interplay among …
Speech Platforms Law Review Symposium 2010: Government Speech: The Government's Ability To Compel And Restrict Speech, Abner S. Greene
Speech Platforms Law Review Symposium 2010: Government Speech: The Government's Ability To Compel And Restrict Speech, Abner S. Greene
Faculty Scholarship
The state plays different roles, and free speech doctrine should (and sometimes does) respect these roles. We properly insist (with some categorical exceptions) that the state not regulate private speech based on subject matter or point of view. If private speakers want to praise the Nazis or condemn homosexuality, the state has no place stopping them, even if firmly convinced these ideas are wrong. Why we have such firm protection for speech we abhor is a matter of much debate. To some extent, it's because we don't trust the state to make content-based judgments consistently as a matter of principle; …
Stealth Marketing And Antibranding: The Love That Dare Not Speak Its Name , Sonia K. Katyal
Stealth Marketing And Antibranding: The Love That Dare Not Speak Its Name , Sonia K. Katyal
Faculty Scholarship
A difficult set of legal issues stem from the crossover between stealth marketing and user generated content in both real and digital space. Today, branding opportunities can be cloaked within ordinary noncommercial expression, as corporate sponsorship extends further and further toward resembling user generated content, making it difficult to discern when content is sponsored and when it is not. Since many forms of stealth marketing often takes place within the nontraditional channels that antibranding occupies (public space, websites, and other forms of media and content), it becomes more difficult then for the consumer to distinguish between the brand and the …
Response To Akhil Reed Amar's Address On Applications And Implications Of The Twenty-Fifth Amendment, John D. Feerick
Response To Akhil Reed Amar's Address On Applications And Implications Of The Twenty-Fifth Amendment, John D. Feerick
Faculty Scholarship
Life has taught those of us who have lived as long as I have that the seemingly impossible can happen and that we must be prepared to deal with the unimaginable on a moment's notice. In October 1963, I wrote an article for the Fordham Law Review in which I contemplated the need for such preparations should the unimaginable indeed strike: "The problem of presidential inability has now been generally forgotten by our national legislators as well as by the public. Since we have a young, able and healthy President, all indications are that the issue will remain dormant until …
You Do Have To Keep Your Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman
You Do Have To Keep Your Promises: A Disgorgement Theory Of Contract Remedies, Steve Thel, Peter Siegelman
Faculty Scholarship
Contract law is generally understood to require no more of a person who breaches a contract than to give the injured promisee the "benefit of the bargain." The law is thus assumed to permit a promise-breaker to keep any profit remaining from breach, after putting the victim in the position he would have been in had the promise been performed. This conventional description is radically wrong: across a wide range of circumstances, standard contract doctrines actually do require people to keep their promises, or to disgorge their entire profit from breach if they do not. Rather than protecting the expectation …
Hate Speech And The Language Of Racism In Latin America: A Lens For Reconsidering Global Hate Speech Restrictions And Legislation Models, Tanya K. Hernandez
Hate Speech And The Language Of Racism In Latin America: A Lens For Reconsidering Global Hate Speech Restrictions And Legislation Models, Tanya K. Hernandez
Faculty Scholarship
In Latin America, like many countries in Europe, hate speech is prohibited. Yet Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discourse focuses on a comparison of the advisability of Europe's hate speech regulations and free speech acceptance of hate speech in the United States. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, is undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise …
Current Issues In Judicial Disqualifications Symposium 2011, Michael W. Martin
Current Issues In Judicial Disqualifications Symposium 2011, Michael W. Martin
Faculty Scholarship
Public confidence in the judiciary's integrity is critical, and
Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson
Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson
Faculty Scholarship
This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …
Deontology, Political Morality, And The State Symposium: Political Theory And Criminal Punishment, Youngjae Lee
Deontology, Political Morality, And The State Symposium: Political Theory And Criminal Punishment, Youngjae Lee
Faculty Scholarship
Sometimes the government makes a policy choice, and, as a result, innocent persons die. How should we morally assess such deaths? For instance, is the government’s choice of the reasonable doubt standard or its decision to restrict the death penalty to certain narrow categories responsible for deaths of innocents? If so, does the deontological norm against harming people dictate that the government loosen the evidentiary standard for conviction or widen the availability of capital punishment? This Article argues that the traditional distinctions between intending and foreseeing harm and between causing harm and allowing harm to occur are insufficient to absolve …
Uncertainty And The Advantage Of Collective Settlement Symposium: The Limits Of Predictability And The Value Of Uncertainty: Sixteenth Annual Clifford Symposium On Tort Law And Social Policy, Howard M. Erichson
Faculty Scholarship
Judgments are printed in black and white; reality comes in shades of gray. The settlement palette available to negotiating parties, unlike the adjudication palette available to judges and juries, offers a range of grays to suit the realities of uncertain liability, uncertain causation, and uncertain damages. Settlement thus offers certain advantages over adjudication. I am not referring to process advantages, such as speed, economy, privacy, and relationship preservation. Rather, I am referring to the idea that settlements may offer outcomes that more accurately comport with justice under the relevant facts and law. There is, of course, a long-running debate over …
The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg
The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg
Faculty Scholarship
In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, …
The Durability Of Prison Populations, John F. Pfaff
The Durability Of Prison Populations, John F. Pfaff
Faculty Scholarship
No abstract provided.
Employment Discrimination In The Ethnically Diverse Workplace, Tanya K. Hernandez
Employment Discrimination In The Ethnically Diverse Workplace, Tanya K. Hernandez
Faculty Scholarship
Racial integration has long been the touchstone of racial progress in the workplace. But integration is only the beginning of the struggle to end racial discrimination. As workplaces become more diverse, they do not necessarily become less racially discriminatory. Diverse workplaces may be characterized by antagonism between people of different races. Interethnic discrimination may exist alongside the discrimination that has traditionally occurred between blacks and whites, i.e., non-white racial and ethnic groups may engage in disparate-treatment employment discrimination actionable under Title VII of the 1964 Civil Rights Act. Examples of interethnic discrimination occur among members of different ethnic subgroups, as …
Value Of Intersectional Comparative Analysis To The Post-Racial Future Of Critical Race Theory: A Brazil-U.S. Comparative Case Study, The Commentary: Critical Race Theory: A Commemoration: Response, Tanya K. Hernandez
Faculty Scholarship
This Commentary Article aims to illustrate the value of comparative law to the jurisprudence of Critical Race Theory (CRT), particularly with reference to the CRT project of deconstructing the mystique of "postracialism. " The central thesis of the Article is that the dangerous seductions of a U.S. ideology of "post-racialism" are more clearly identified when subject to the comparative law lens. In particular, a comparison to the Brazilian racial democracy version of "post-racialism"is an instructive platform from which to assess the advisability of promoting post-racial analyses of U.S. racial inequality. In Part I the Article introduces the value of comparative …
Philosophical Objection To The Optimal Tax Model, A , Linda Sugin
Philosophical Objection To The Optimal Tax Model, A , Linda Sugin
Faculty Scholarship
This article questions the normative power of the optimal tax model by examining assumptions made by the developer of that model, James Mirrlees' . It makes a case for moving beyond utilitarian conceptions of social welfare that are at the foundation of the optimal tax model, and that have become the dominant construct in tax policy analysis. In explaining why the Mirrlees assumptions are problematic, the Article argues for a nuanced, philosophical understanding of fairness that incorporates the role of taxation into a broader conception of a just society. A fair tax must satisfy the full range of demands that …
The Costs Of Consensus In Statutory Construction, Ethan J. Leib, Michael Serota
The Costs Of Consensus In Statutory Construction, Ethan J. Leib, Michael Serota
Faculty Scholarship
Finding methodological consensus for statutory interpretation cases is all the rage these days.1 Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive techniques. And now, thanks to Abbe Gluck’s authoritative article, Laboratories of Statutory Interpretation, proponents of interpretive uniformity have evidence that some state courts seem to be applying methodological stare decisis to decide questions of statutory interpretation. After exhaustive reading and analysis of state statutory interpretation cases—cases that have received far less attention than their federal counterparts—Gluck describes several …
Neuroscience, Cognitive Psychology, And The Criminal Justice System, Deborah W. Denno
Neuroscience, Cognitive Psychology, And The Criminal Justice System, Deborah W. Denno
Faculty Scholarship
No abstract provided.
Confirmatory Legislative History , James J. Brudney
Confirmatory Legislative History , James J. Brudney
Faculty Scholarship
Textualists and intentionalists regularly lock horns over the proper approach to construing statutory language regarded as inconclusive. The interpretive debate seems less contentious, however, when the words of the law are deemed clear. There may be reasonable disagreement as to whether the text at issue in a particular controversy has a plain meaning, but if it does then that meaning arguably preempts further inquiry. Since 1990, Supreme Court majority opinions are replete with declarations such as: "Given [a] straightforward statutory command, there is no reason to resort to legislative history"; or "we do not resort to legislative history to cloud …
Reluctance And Remorse: The Covenant Of Good Faith And Fair Dealing With American Employment Law Good Faith And Fair Dealing In The Individual Employment Relationship, James J. Brudney
Faculty Scholarship
The covenant of good faith and fair dealing ("the covenant" or "Good Faith") is now an accepted feature of contractual relations in the United States. Essentially undeveloped until the 1960s, the obligation to act in good faith during contract performance and enforcement gained traction once it was written into the Uniform Commercial Code (UCC) and adopted by state legislatures. The covenant achieved broader recognition when included in 1981 as a new section in the Restatement (Second) of Contracts ("Restatement"). In the employment setting, however, the covenant has not fared nearly so well. The majority of states have declined to apply …
Canon Shortfalls And The Virtues Of Political Branch Interpretive Assets Tribute Issue In Honor Of Philip P. Frickey: Festschrift, James J. Brudney
Canon Shortfalls And The Virtues Of Political Branch Interpretive Assets Tribute Issue In Honor Of Philip P. Frickey: Festschrift, James J. Brudney
Faculty Scholarship
As a legislation scholar, Philip Frickey was present at the creation.I Along with his coauthor William Eskridge, Frickey reconceptualized the field of legislation and statutory interpretation. In doing so, he opened the door to an unparalleled period of inquiry and debate about the meaning of statutes, among both judges and academics. The Eskridge and Frickey casebook, published in 1988, was justly hailed by Judge Richard Posner as having "done for legislation what Hart and Sacks did for legal process, or Hart and Wechsler for federal courts: it has demonstrated the existence of a subject." Over the ensuing two decades, Frickey …
Purple Haze (Book Review), Clare Huntington
Purple Haze (Book Review), Clare Huntington
Faculty Scholarship
This is a review of Red Families v Blue Families: Legal Polarization and the Creation of Culture. By Naomi Cahn & June Carbone. New York: Oxford University Press. 2010
Embracing The Affective Family, Clare Huntington
Embracing The Affective Family, Clare Huntington
Faculty Scholarship
No abstract provided.
Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson
Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson
Faculty Scholarship
Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among …
Forced Eviction And Resettlement In Cambodia: Case Studies From Phnom Penh, Chi Adanna Mgbako, Rijie Ernie Gao, Elizabeth Joynes, Anna Cave, Jessica Mikhailevich
Forced Eviction And Resettlement In Cambodia: Case Studies From Phnom Penh, Chi Adanna Mgbako, Rijie Ernie Gao, Elizabeth Joynes, Anna Cave, Jessica Mikhailevich
Faculty Scholarship
This Article culminates a project undertaken by the Walter Leitner International Human Rights Clinic (“Leitner Clinic”) at Fordham Law School to examine the effects of land resettlement on communities that were forcibly evicted or are at risk of forced eviction from their homes, and, in particular, the effects of forced evictions on the Boeung Kak Lake community in central Phnom Penh and on people living with HIV/AIDS (“PLWHA”). This Article is based on field research the Leitner Clinic conducted in Cambodia in the fall of 2008. While in Cambodia, the Leitner Clinic interviewed families from four different communities: resettlement camps …
Feminism As Liberalism: A Tribute To The Work Of Martha Nussbaum Symposium: Honoring The Contributions Of Professor Martha Nussbaum To The Scholarship And Practice Of Gender And Sexuality Law: Feminism And Liberalism, Tracy E. Higgins
Faculty Scholarship
In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities …
Internet Governance And Democratic Legitimacy, Olivier Sylvain
Internet Governance And Democratic Legitimacy, Olivier Sylvain
Faculty Scholarship
Even as the Internet goes pop, federal policymakers continue to surrender their statutory obligation to regulate communications in the first instance to extralegal nongovernmental organizations comprised of technical experts. The Federal Communications Commission’s conclusion that a major broadband service provider's network management practices were unreasonable is a case in point. There, in the absence of any decisive legislative or even regulatory guidance, the FCC turned principally to the engineering principles on which the Internet Engineering Task Force bases transmission standards: to wit, (1) decentralization, (2) interoperability, and (3) user empowerment. This impulse to defer as a matter of course to …
The Market For Odious Debt, Caroline M. Gentile
The Market For Odious Debt, Caroline M. Gentile
Faculty Scholarship
No abstract provided.