Law Commons^™

Can Criminal Law Do Without Moralism?, Review Of Crime And Punishment: A Concise Moral Critique By Hyman Gross, Youngjae Lee

Faculty Scholarship

This is a review of Hyman Gross, Crime and Punishment: A Concise Moral Critique (Oxford: Oxford University Press, 2012).

Local Judges And Local Government, Ethan J. Leib

Faculty Scholarship

This interview-based empirical study explores how local judges view themselves and their crosscutting roles in local and state government. In particular, it considers local judges’ relationships with the public that elects them, the executive and legislative branches of their localities, and the larger statewide judicial bureaucracy of which they are a very large but somewhat disconnected part. The Article reports on the results of interviews with local judges at the county, town, and village levels — and suggests some broader lessons for scholars, officials, and policymakers interested and active in local government law and politics. Those who study local government …

Judge Jack Weinstein And The Allure Of Antiproceduralism, Howard M. Erichson

Faculty Scholarship

In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor …

Caperton's Next Generation: Beyond The Bank, Jed H. Shugerman, Debrah L. Basset, Gregory S. Parks, Dmitry Bam, Rex R. Perschbacher

Faculty Scholarship

The article looks at a panel discussion on judicial responsibility and the U.S. Supreme Court's decision in 'Caperton v. A.T. Massey Coal Co.' discussed by several law professionals including Jed Shugerman, Debra Lyn Bassett and Dmitry Bam at a 2014 symposium held in the New York University.

Correcting Corporate Benefit: How To Fix Shareholder Litigation By Shifting The Doctrine On Fees, Sean J. Griffith

Faculty Scholarship

The current controversy in corporate law concerns whether firms can discourage litigation by shifting its cost to shareholders. But corporate law courts have long engaged in fee-shifting—from shareholder plaintiffs to the corporation—under the “corporate benefit” doctrine. This Article examines fee-shifting in share-holder litigation, arguing that current practices are unsound from the perspective of both doctrine and public policy. Unfortunately, the fee-shifting bylaws recently enacted in response to the problem of excessive shareholder litigation fare no better. The Article therefore offers a different approach to fee-shifting, articulating three specific reforms of the corporate benefit doctrine to quell the current crisis in …

The Rise Of The Security State, Wang Yuhua, Carl F. Minzner

Faculty Scholarship

Over the past two decades, the Chinese domestic security apparatus has expanded dramatically. “Stability maintenance” operations have become a priority for local Chinese authorities. We argue that the birth of these trends dates to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those that of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social protest. We show that …

Test Unrest: New York City's Examination High Schools, Aaron J. Saiger

Faculty Scholarship

New York City bases admissions to its eight “specialized” high schools entirely upon scores on a single standardized test. This policy, hotly contested when it was codified by state law in 1971, faces renewed political and legal attacks today. Single-test admissions consistently result in alarmingly low levels of African-American and Hispanic enrollment at the most sought-after specialized schools. This brief essay compares today’s debate to that of 1971. It notes two major developments since then. The City now has eight test-only high schools, not three. Moreover, the eight schools now function in the larger context of New York’s system of …

The Theft Of Social Security, Constantine N. Katsoris

Faculty Scholarship

No abstract provided.

Double Remedies In Double Courts, Sungjoon Cho, Thomas H. Lee

Faculty Scholarship

This Article uses an ongoing trade controversy litigated in U.S. courts and the World Trade Organization dispute resolution system as a vehicle for exploring different models to deal with parallel adjudications in different legal systems between the same or related parties on the same issue. In lieu of more traditional models of subordination or first-to-decide sequencing, the Article proposes an engagement model as a solution to the double courts, single issue problem.

The Legitimacy Of Administrative Law, Jed H. Shugerman

Faculty Scholarship

Reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940; Joanna Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal; Philip Hamburger, Is Administrative Law Unlawful?; Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law; and Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.

China After The Reform Era, Carl F. Minzner

Faculty Scholarship

China’s reform era is ending. Core factors that characterized it – political stability, ideological openness, and rapid economic growth – are unraveling. In part, this is the result of Beijing’s steadfast refusal to contemplate fundamental political reform. Since the early 1990s, this has fueled the rise of entrenched interests within the Communist Party itself. It has also contributed to the systematic underdevelopment of institutions of governance among state and society at large. Now, to address looming problems confronting the nation, Chinese leaders are progressively cannibalizing institutional norms and practices that have formed the bedrock of the regime's stability in the …

Marriage As Black Citizenship?, Robin A. Lenhardt

Faculty Scholarship

The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships — gay or straight. Nonmarriage might do just as much, if not …

Agora: Reflections On Zivotofsky V. Kerry Presidential Signing Statements And Dialogic Constitutionalism, Catherine Powell

Faculty Scholarship

When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotojsky v. Kerry (Zivotojsky lI), Jack Goldsmith hailed the decision as a "vindication" of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the "constitutionally ludicrous" work of an overreaching, "imperial presidency." Others in this Symposium and elsewhere have covered what a "bonanza" Zivotojsi II is for foreign relations law, the competing visions of foreign relations at the case's …

Legislation And Regulation In The Core Curriculum: A Virtue Or A Necessity?, James J. Brudney

Faculty Scholarship

The first-year curriculum at American law schools has been remarkably stable for more than 100 years. Many would say ossified. At Harvard, the First-Year Course of Instruction in 1879-80 consisted of Real Property, Contracts, Torts, Criminal Law and Criminal Procedure, and Civil Procedure. These five courses-focused heavily on judge-made common law-dominated Harvard's IL curriculum from the law school's founding into the 21st century. The same five subjects have long commanded the primary attention of first-year students at Fordham, founded in 1905, and at virtually every other U.S. law school throughout the 20th century. Starting in the 1990s, however, a growing …

Litigation Isolationism, Pamela K. Bookman

Faculty Scholarship

Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts.

This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that …

Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany

Faculty Scholarship

No abstract provided.

Disruption And Deference, Olivier Sylvain

Faculty Scholarship

Online video streaming applications enable users to watch over the-air broadcast programs at any time and almost on any device. As such, they challenge the pertinence of traditional video distribution law and the broadcast network system on which it is based. Congress enacted the Transmit Clause of the 1976 Copyright Act to resolve the high-stakes tussle between broadcasters and cable providers. But, today, that provision is ill-suited to resolving whether unauthorized streaming infringes on broadcasters’ copyright to perform works publicly. Its scope is ambiguous enough that judges across the country were notably divided on whether it reaches online video distribution—that …

Strengthening Charity Law: Replacing Media Oversight With Advance Rulings For Nonprofit Fiduciaries, Linda Sugin

Faculty Scholarship

This Article considers three urgent challenges facing the charitable community and its state regulators: too little fiduciary duty law for nonprofits, the rise of media enforcement of wrongdoing in charities, and an inherent tension in the state’s dual role as enforcer and protector of the nonprofit sector. It analyzes whether the scarcity of law is really a problem by comparing nonprofit organizations with business organizations and concludes that charities lack the selfenforcement mechanisms of businesses and therefore need more government guidance. It evaluates whether the media has made governmental supervision obsolete and expresses skepticism about the press displacing state oversight. …

Dictionaries 2.0: Exploring The Gap Between The Supreme Court And Courts Of Appeals, James J. Brudney, Lawrence Baum

Faculty Scholarship

The remarkable rise in dictionary usage by the Supreme Court since themid-1980s has been a subject of considerable scholarly and media interest. Wepublished an article in November 2013 that explored the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. In a Yale Law Journal Note one year later, John Calhoun embraced some of our findings, criticized others, and—importantly—broadened the inquiry to identify asizeable gap in overall frequency of citation to dictionaries between the Supreme Court and the federal courts of appeals.

This gap in dictionary usage is our primary focus here. Previously we analyzed nearly 700 Supreme …

Less Is More In International Private Law, Susan Block-Lieb, Terence C. Halliday

Faculty Scholarship

No abstract provided.

Electronically Stored Information And The Ancient Documents Exception To The Hearsay Rule: Fix It Before People Find Out About It, Daniel J. Capra

Faculty Scholarship

The first website on the Internet was posted in 1991. While there is not much factual content on the earliest websites, it did not take long for factual assertions—easily retrievable today—to flood the Internet. Now, over one hundred billion emails are sent, and ten million static web pages are added to the Internet every day. In 2006 alone, the world produced electronic information that was equal to three million times the amount of information stored in every book ever written. The earliest innovations in electronic communication are now over twenty years old—meaning that the factual assertions made by way of …

Regleprudence – At Oira And Beyond, Nestor M. Davidson, Ethan J. Leib

Faculty Scholarship

There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. While administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal or law-like but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call "regleprudence," a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into …

Legal Discourse And Racial Justice: The Urge To Cry ‘Bias!, Bruce A. Green

Faculty Scholarship

One who is convinced that a judge wrongly decided a case may sometimes be tempted to accuse the judge of bias, referring to unconscious social-group stereotypes and/or cognitive biases that fall under the rubric of “implicit biases.” The rhetoric is problematic, however, for various reasons. One is that the term “bias” in this context may be misunderstood to mean something different and unintended – either a disqualifying bias under judicial conduct rules or a conscious prejudice. Another is that, even if the intended meaning is clear, a judge’s implicit biases cannot fairly be inferred from a single wrong decision. To …

Religious Freedom And (Other) Civil Liberties: Is There A Middle Ground?, Abner S. Greene

Faculty Scholarship

There appears to be an intractable debate between those who favor religious accommodations and those who favor civil liberties such as abortion rights and equality rights for same-sex couples. Many take firm positions of truth about one matter or the other. Here, I sketch a middle ground, continuing my endorsement of a robust normative or value pluralism. I canvass some arguments for this position, while also describing and critiquing some works of intellectual history that seem too wedded to one teleological posture or another. Despite my support for the Religious Freedom Restoration Act, I critique the Court’s Hobby Lobby ruling, …

Family Law And Nonmarital Families, Clare Huntington

Faculty Scholarship

No abstract provided.

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

Children’S Health In A Legal Framework, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …

Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff

Faculty Scholarship

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try …

Due Process And The Non-Citizen: A Revolution Reconsidered, Joseph Landau

Faculty Scholarship

Mathews v. Eldridge is typically understood to be a ruling limiting due process protections in benefits determinations, but this case of judicial restraint in ordinary domestic law has activist features where non-citizens are concerned. The transplantation of Mathews into the critical areas of immigration and national security has produced a body of law that is slowly ushering in rights-affirming outcomes and weakening conventional doctrines of exceptionalism in immigration and national security. There are two chief reasons for this. First, ever since Mathews required an explicit judicial determination of private interests, courts have used an increasingly particularistic, case-by-case analysis in immigration …

Disappearing Legal Black Holes And Converging Domains: Changing Individual Rights Protection In National Security And Foreign Affairs, Andrew Kent

Faculty Scholarship

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have …