Law Commons^™

Taking Subsidiarity Seriously: Federalism In The European Community And The United States, George A. Bermann

Faculty Scholarship

For a principle that has dominated discussions of European federalism for over five years, subsidiarity has received surprisingly poor academic mention. Subsidiarity has been criticized as "inelegant . . .Eurospeak," "the epitome of confusion," and simple "gobbledegook." It has been described by some as nothing new and by others as quite novel and actually quite dangerous. The President of the Commission of the European Communities, said to be an enthusiast of subsidiarity, finds it used at times as an "alibi," and more specifically as "a fig leaf ... to conceal [an] unwillingness to honour the commitments which have already been …

Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that …

Considering Zenger: Partisan Politics And The Legal Profession In Provincial New York, Eben Moglen

Faculty Scholarship

History is the narration of the past, and not all valuable history is true. When William Smith, Jr. first wrote his much-admired and widely distributed History of the Province of New-York, in 1756, he ended his narration twenty-four years before his own time, with the arrival of Governor William Cosby in New York on August 1, 1732. In justification of his abrupt termination at this particular point, Smith wrote:

The history of our publick transactions, from this period, to the present time, is full of important and entertaining events, which I leave others to relate. A very near relation …

Revolution And Judicial Review: Chief Justice Holt's Opinion In City Of London V. Wood, Philip A. Hamburger

Faculty Scholarship

In 1702, in an opinion touching upon parliamentary power, Chief Justice Sir John Holt discussed limitations on government in language that has long seemed more intriguing than clear. Undoubtedly, the Chief Justice was suggesting limitations on government – limitations that subsequently have become quite prominent, particularly in America. Yet even the best report of his opinion concerning these constraints has left historians in some doubt as to just what he was saying and why it was significant.

The case in which Chief Justice Holt was so obscure about matters of such importance, City of London v. Wood, revived the …

Free Speech And The Widening Gyre Of Fund-Raising: Why Campaign Spending Limits May Not Violate The First Amendment After All Symposium On Campaign Finance Reform, Vincent A. Blasi

Faculty Scholarship

Candidates for office spend too much of their time raising money. This is scarcely a controversial proposition. A major impetus for campaign finance reform is the frustration politicians now feel concerning how much time they must devote to courting potential donors, often by methods borrowed from the marketplace that can only be described as demeaning. The situation has gotten worse as electoral merchandising has grown ever more sophisticated and expensive.

Democracy And Domination In The Law Of Workplace Cooperation: From Bureaucratic To Flexible Production, Mark Barenberg

Faculty Scholarship

In May of 1993, President Clinton's Commission for the Future of Worker-Management Relations began its investigation of whether a major overhaul of United States labor law is necessary to encourage high-performance workplaces and labor-management cooperation. Even if its recommendations, due in November 1994, do not yield immediate congressional fruit, the Commission's work is likely to influence the study and politics of labor law reform for some time to come. The Commission is chaired by John Dunlop, the eminent labor-relations specialist and former Secretary of Labor. Its membership includes some of the nation's foremost academic and political proponents of far-reaching labor …

Four Reasons And A Paradox: The Manifest Superiority Of Copyright Over Sui Generis Protection Of Computer Software, Jane C. Ginsburg

Faculty Scholarship

The "Manifesto Concerning the Legal Protection of Computer Programs" offers an extensive and challenging critique of current intellectual property protection of software. The authors argue strongly that the law should focus on the value of the know-how embodied in programs and the importance of protecting it, rather than on the particular means which might be used to appropriate it. The authors seek to compel reconceptualization of the place of computer programs, and of software authors' creativity, within the domain of intellectual property. However, their brief for change manifests several flaws. Paradoxically, it comes at once both too soon and too …

Institutions As Relational Investors: A New Look At Cumulative Voting, Jeffrey N. Gordon

Faculty Scholarship

The hostile takeover may have become a receding memory, but the problem that the market in corporate control purported to address nevertheless remains. In a world of imperfect competition, the product, capital, and managerial markets may temporarily indulge suboptimal performance by a firm's managers. As cases such as GM, Sears, American Express, and IBM illustrate, a firm with a substantial franchise and substantial financial reserves can sustain deteriorating economic performance over a significant period, resulting in a long slow slide of economic values. Shareholders and society generally will benefit from a mechanism that replaces the firm's incumbent managers well before …

Unburdening The Undue Burden Standard: Orienting Casey In Constitutional Jurisprudence, Gillian E. Metzger

Faculty Scholarship

"Liberty finds no refuge in a jurisprudence of doubt." With these words in the 1992 case, Planned Parenthood v. Casey, the Supreme Court ushered in a new era of abortion regulation. Speaking through a joint opinion authored by Justices O'Connor, Kennedy, and Souter, the Court indicated that from this point forth abortion regulations would be judged by an "undue burden" standard. According to this standard, an abortion regulation is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion" of a nonviable fetus.

The Justices who wrote …