Law Commons^™

Punitive Damages And The Economic Theory Of Penalties, Keith N. Hylton

Faculty Scholarship

Deterrence has long been considered one of the most important goals of both tort law and criminal law. However, there are different notions of deterrence advanced in the literature in these areas. The traditional notion of deterrence in the criminal punishment literature is one of "complete deterrence," of stopping offenders from committing offensive acts. Generally, complete deterrence is accomplished by eliminating the prospect of gain on the part of the offender. The alternative, more recent notion of deterrence, largely observed in the torts literature, is that of "appropriate or optimal deterrence," which implies deterring offensive conduct only up to the …

The Lawlessness In Our Courts, Susan P. Koniak

Faculty Scholarship

Elsewhere I have argued that the word "law" is too important a resource to reserve exclusively for state acts and pronouncements.⁵ Here, however, my emphasis is somewhat different. Here, I want to concentrate on the importance of denying the label of "law" to some acts that the state calls "law," particularly the importance of lawyers denying the state's indiscriminate use of the word "law." The bar's rhetoric maintains that the profession's independence from the state is critically important because only an independent bar can serve as an appropriate check on tyranny, on state force masquerading as law.⁶ Well, …

Lawyering Up, Jack M. Beermann, Susan Bandes

Faculty Scholarship

The widespread dissemination of knowledge about the Miranda protections is often referred to as one of the most successful efforts ever made to educate the American public about its constitutional rights. Studies confirm that a high percentage of the public is aware of Miranda, largely due to television and other mass media. This article asks the question: if television is educating the public about its Miranda rights, what exactly is it teaching us? As fans of the cop show NYPD Blue (a show in which the interrogation and confession are often the dramatic focus) we use that show to explore …

We The Unconventional American People, James E. Fleming

Faculty Scholarship

In his 1991 volume, We the People: Foundations, Bruce Ackerman urged us as Americans to declare our independence from European models of government and to “look inward” to rediscover our distinctive constitutional scheme--dualist democracy.1 In his new volume, We the People: Transformations, he exhorts us as dualist democrats to break up the monopoly that Article V of the Constitution has held on our vision of constitutional amendment. He urges us to move “beyond Article V” and to embrace a pluralist understanding of the sources of higher lawmaking (pp 15-17). Only by doing so, he argues, will we be able …

The Continuing Relevance Of Section 8 (A) (2) To The Contemporary Workplace, Michael C. Harper

Faculty Scholarship

In this article I evaluate the claims of the critics of the current section 8(a)(2). I do so, as I believe would Professor St. Antoine, ¹⁴ with an eye toward the historical development of new production systems in America and the concomitant development of personnel policies to fit those systems. I consider the purposes for which firm managers seemed to establish and control employee advisory committees before passage of the NLRA and the purposes for which managers seem to establish and control such committees in today's economy. I conclude that these purposes have not substantially changed. Managers before passage of …

Holmes's Good Man: A Comment On Levinson And Balkin, Jack M. Beermann

Faculty Scholarship

Sanford Levinson and J.M. Balkin's paper ("L & B") is refreshing in the attention it pays to Holmes's oft-neglected "good [man], who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience."¹ The good man provides a heuristic foil for Holmes's "bad man" whose conduct is motivated only by the potential material consequences, and thus L & B's analysis should help shed light on what is a puzzling metaphor in the folklore surrounding Holmes's The Path of the Law. L & B provide some interesting observations on the implications of …

Comment On Frederick Schauer's Prediction And Particularity Comment, Gerald F. Leonard

Faculty Scholarship

Ignorance of the law is generally no excuse. I say generally because the century since the publication of The Path of the Law has brought a small but increasing number of exceptions to the rule. In Oliver Wendell Holmes's day, however, exceptions to the rule were nearly nonexistent, much to Holmes's satisfaction.1 In The Common Law, Holmes said that the law requires persons "at their peril to know the teachings of common experience, just as it requires them to know the law." 2 He did not, of course, actually think that common experience was perfectly knowable or judicial interpretation perfectly …

Memorial Tributes For Professor Elizabeth B. Clark In Memoriam, Pnina Lahav

Faculty Scholarship

I leave to others to talk about Betsy's scholarship. Let me only say that she had a remarkable ability to interest others in her projects. When she gave papers or workshops, she spoke softly but with such enthusiasm and engagement that she drew others into her topics and interests effortlessly. Her listeners would lean forward and intently follow her sometimes complex and nuanced train of thought. I have often wondered at this gift-I think it has something to do with her approach to her audience, her ability to be respectful and inclusive rather than distanced and formal. Despite doing painstaking …

Deliberative Democracy, Overlapping Consensus, And Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

A pressing concern in political and constitutional theory is how to construct a model of justification in law and politics that offers methods for securing agreement and social cooperation in the face of moral pluralism. A common goal of this work is to elaborate the requirements of deliberative democracy, that is, a model of democratic self-government that "asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it."' Two fundamental questions are: (1) are there any limits to the grounds to which citizens may appeal or the reasons that …

Measuring Market Power When The Firm Has Power In The Input And Output Markets, Keith N. Hylton, Mark Lasser

Faculty Scholarship

We examine the problem of measuring market power when the firm has monopoly power in the output market and monopsony power in the input market - a case we refer to as 'dual-market' power. We show how the Lerner index, which measures the mark-up over the marginal cost, can be modified to reflect the firm's ability to set price above the competitive level.

Discovery, Learning And Adoption Of New Techniques: Choosing Specialization To Optimize Technical Progress, James Bessen

Faculty Scholarship

Why is it that adopting new technologies takes so long and costs so much? Clearly, firms do not know all the details necessary to implement a complex technology efficiently; learning these details requires extensive search. However, this explanation has a problem: even limited search may be so costly that newly discovered techniques will not be tried. We find that specialization solves this problem. If a complex process is divided into many small components, each searched in parallel, then discoveries are readily tested. Moreover, specialized search can perform surprisingly well even for processes of indefinite complexity. We measure the returns to …

Defining The Economic Relationship Appropriate For Collective Bargaining, Michael C. Harper

Faculty Scholarship

These are, of course, difficult times for those who share the goals of the framers of the original National Labor Relations Act (the "NLRA" or "Act") .' As union density in the private sector has continued to decline² and as the NLRA has proven helpless against the economic developments that have generated continuing employer resistance to collective bargaining, the original vision of the Wagner Congress must seem myopic and shaded with an excessively optimistic tint. Observing these economic developments and the enhanced impediments to union organization that they have posed makes it clear that only a much different statute …

Tribute, Jeffrey L. Salinger

Tributes

I remember sitting in the law auditorium late in our first semester of law school. Listening to a handful of professors, we heard about the electives offered for second semester. I am not sure how I felt prior to entering the auditorium that day. I do remember how I felt afterwards -- I was going to get into Professor Clark’s class. From what I’ve heard, her legal history seminar was by far the most highly coveted of the first-year electives. That’s no surprise, though -- you could almost feel her excitement as she spoke about the course. On hearing that …

Tribute, Bridget J. Crawford

Tributes

I spent my third year of law school in 1995-1996 at Boston University as a visiting student from the University of Pennsylvania Law School. Although personal reasons brought me to Boston that year, one reason brought me to B.U. -- Betsy Clark, a scholar whose work I had long admired and who had agreed to take me on as her student. I knew what a top-notch historian Betsy was, but I could not have known when I arrived at B.U. what a great teacher, generous mentor, and kind friend she would be.

In Memoriam: Memorial Tributes For Professor Elizabeth B. Clark, Ronald A. Cass, Thomas A. Green, Stanley N. Katz, Katherine Stone, Pnina Lahav, William W. Park, Aviam Soifer, David J. Seipp

Tributes

Today we come together to remember Professor Elizabeth Battelle Clark, Betsy to all who knew her. We were shocked to hear of her illness, inspired by the intensity of her fight against it, and deeply saddened by her death. We have come together before to mourn her loss. Now we gather once more to celebrate our good fortune to have known Betsy and to share our remembrances of her.

Chapter 7 - Reflections On The Scholarship Of Elizabeth B. Clark, Kristin Olbertson, Carol Weisbrod, Christine Stansell, Martha Minow

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

Elizabeth Clark's essays on early nineteenth-century reform movements make a compelling case that abolitionists and feminists alike understood individual rights from a profoundly religious perspective. Clark also demonstrates how these reformers advocated the protection of so-called "natural rights" for enslaved African-Americans and white women in the vivid and fervently emotional language of evangelical revivalism. Broader cultural and intellectual trends of resistance to governmental and clerical authority, trends rooted in liberal and evangelical Protestantism, Clark argues, helped fuel attacks on slavery and gender inequality. Rejecting other historians' portrayals of the antebellum reformers as primarily secular in orientation, Clark makes the arresting, …

Dedication: For Betsy Clark, 1952-1997, Law & History Review Editor

Tributes

With the consent of those whose work appears here, and on behalf of the American Society for Legal History, this issue of the Law and History Review is dedicated to the memory of our friend and colleague, Elizabeth Battelle Clark, who died on the evening of December 26th, 1997, after a long and fierce fight with cancer. It is deeply saddening to realize that in each of our last three issues we have noted the death of a colleague -- of Willard Hurst, Paul Murphy, and now Betsy Clark. Hers is perhaps the hardest of these deaths to take, because …

Managing Legal Change: The Transformation Of Establishment Clause Law, Hugh Baxter

Faculty Scholarship

One perspective on the Supreme Court is to see it as a manager of legal change. At a particular time, and with respect to a particular issue of federal law, a majority of Justices may coalesce around a law-transforming project. Because the Court enjoys nearly complete control over its docket, such a coalition of Justices may select carefully the cases most advantageous to the law -transforming project. And because the Court's pronouncements on matters of federal law are binding on all other interpreters, the Court may enforce its legal transformation by exercising its disciplinary powers of review. The Court's implementation …

Archibald Cox: Teacher, David J. Seipp

Faculty Scholarship

Archie Cox is a teacher. He taught generations of law students at Harvard Law School and, more recently, at Boston University School of Law. He left the classroom on three occasions, reluctantly, when first President Truman, then President Kennedy, then President Nixon's Attorney General called Professor Cox to Washington to play a part on the national stage. In his first weeks as Watergate Special Prosecutor, Cox carried with him a stack of blue books, Labor Law examinations he still had to grade (p. 263). In the public eye, his straight-backed demeanor, his familiar crew cut, half-glasses, bow tie, and tweeds …

Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond 'Empty' Toleration To Toleration As Respect, Linda C. Mcclain

Faculty Scholarship

This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …

Partial-Birth Abortion, Congress, And The Constitution, George J. Annas

Faculty Scholarship

The political debate over abortion during the past 25 years has shifted among various dichotomous views of the world: life versus choice, fetus versus woman, fetus versus baby, constitutional right versus states' rights, government versus physician, physician and patient versus state legislature. Hundreds of statutes and almost two dozen Supreme Court decisions on abortion later, the core aspects of Roe v. Wade, 1 the most controversial health-related decision by the Court ever, remain substantially the same as they were in 1973. Attempts to overturn Roe in both the courtroom and the legislature have failed. Pregnant women still have a constitutional …

Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke

Faculty Scholarship

In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …

Defining The Limits Of Free-Riding In Cyberspace: Trademark Liability For Metatagging, Maureen A. O'Rourke

Faculty Scholarship

The Internet has the potential to revolutionize global communication, offering a relatively low-cost means for information exchange. Since its inception as a research network, the Internet has developed into a "a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services."' The World Wide Web ("Web"), a tool which helps to organize the enormous amount of information available on the Internet, has been a catalyst in the Internet's emergence as a viable commercial marketplace.

Defending The Middle Way: Intermediate Scrutiny As Judicial Minimalism, Jay D. Wexler

Faculty Scholarship

In the last few years, Court-watchers have been particularly busy critiquing the constitutional decisions of the splintered Rehnquist Court. Two of the recurring critiques have posited that the Justices are overly activist and that their opinions are needlessly confusing. American Lawyer's Stuart Taylor, for example, has decried both the "jurisprudential mess" of the Court's recent redistricting decisions' as well as the disturbing activism that Taylor believes marks each of the Equal Protection decisions of the 1995-96 Terman activism that has led him to wonder "whether there is any life at all left in the idea of judicial restraint."' Eva Rodriguez …

Intellectual Property As Price Discrimination: Implications For Contract, Wendy J. Gordon

Faculty Scholarship

As people become enamored with the possible benefits of allowing price discrimination in contracts for intellectual goods, they should realize that traditional intellectual property law works by fostering price discrimination among customers. This simple fact has implications for federal pre-emption, and is a reminder of the complexity of the economic issues involved. Increasing a seller's ability to price discriminate will often involve increasing his monopoly power, with dubious welfare effects.

Marriage Contracts And The Family Economy, Katharine B. Silbaugh

Faculty Scholarship

One simplified view of contract law is that the state enforces private bargains without looking into the substance of those bargains. From this contractual perspective marriage might look like a contract to exchange services and goods: love, money, the ability to have and raise children, housework, sex, emotional support, physical care in times of sickness, entertainment and so forth. But when the parties to a marriage put these terms in writing, courts only enforce the provisions governing money. This contract/family law rule of selective enforcement disproportionately benefits those who bring more money to a marriage, who are more likely to …

Cross-Border Securitization: Without Law, But Not Lawless, Tamar Frankel

Faculty Scholarship

The Article discusses two puzzles posed by cross-border securitization.

First, why do the innovators in this area "give away" their creations through publications and other means rather than attempt to extract licensing fees by registering copyrights, patents, and trade names? The Article shows that innovators benefit from "giving away" their innovations through fees of the first clients or future clients to a greater extent than through licensing fees. Second, how can securitization markets develop under fragmented and unpredictable laws? The Article argues that cross-border securitization is flourishing under a "law merchant," which is later incorporated into domestic laws. In fact, …

Human Cloning: A Choice Or An Echo, George J. Annas

Faculty Scholarship

The chant is "cloning, cloning, cloning"; but the echo is "choice, choice, choice." From all the hoopla about human cloning as a human choice it would seem that cloning must be the most important scientific issue of our age. My intent in this Commentary is not to join this chorus, but to take advantage of cloning's high visibility to explore the nature of the choice it offers. What is it that makes human cloning at once so appealing to a few and so repulsive to most? The answer, I think, can be found in Roman mythology: Cloning recalls Ovid's myth …

Human Rights And Health - The Universal Declaration Of Human Rights At 50, George J. Annas

Faculty Scholarship

War, famine, pestilence, and poverty have had obvious and devastating effects on health throughout human history. In recent times, human rights have come to be viewed as essential to freedom and individual development. But it is only since the end of World War II that the link between human rights and these causes of disease and death has been recognized.1-3 The 50th anniversary of the Universal Declaration of Human Rights — signed on December 10, 1948 — provides an opportunity to review its genesis, to explore the contemporary link between health and human rights, and to develop effective human-rights …

The Aba's Proposed Moratorium On The Death Penalty: The American Bar Association And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

The ABA explains its proposed moratorium on capital punishment in part on the ground that recent decisions rendered by the Supreme Court and legislation enacted by Congress limit the ability of prisoners under sentence of death to challenge their sentences in the federal courts.' According to the ABA, the Supreme Court has placed numerous hurdles in the path of prisoners who apply to the federal courts for a writ of habeas corpus, claiming that their convictions were obtained or their sentences were imposed in violation of federal law. Congress, for its part, has added even more barriers in Title I …