Law Commons^™

Justice And Fairness In The Protection Of Crime Victims, George P. Fletcher

Faculty Scholarship

In this Article, Professor Fletcher discusses the crucial distinction between justice and fairness-as well as its effect on the shifting "boundaries of victimhood "-from a comparative viewpoint by examining the approaches that various human rights instruments take to the problem of victims' rights. While the European Convention on Human Rights represents an evolving "middle ground" in the treatment of victims' rights (such recent cases as X. & Y. v. The Netherlands, A. v. United Kingdom, and M.C. v. Bulgaria are examined), only the Rome Statute of the International Criminal Court gives real priority to victims of crime with …

A Defense Of Paid Family Leave, Gillian Lester

Faculty Scholarship

The problem of combining work and family life is perhaps the central challenge for the contemporary American family. In this Article, I evaluate and defend government provision of paid family leave, a benefit that would allow workers to take compensated time off from work for purposes of family caregiving.

A legal intervention in the arena of work-family accommodation can only build on some prior normative understanding of the family, and embedded within that, contested value choices about women's identities and entitlements in workplace, family, and society. I am not the first legal scholar to advocate paid family leave of some …

Complexity Of School-Police Relationships Challenge Special Needs Doctrine, Joshua Gupta-Kagan

Faculty Scholarship

On November 5, 2003, concern regarding suspected drug activity led to a massive police search of Stratford High School in the Berkeley School District, north of Charleston, South Carolina. (See Police, School District Defend Drug Raid, available at http://www.cnn.com/2003/US/South/11/07/school.raid/index.html.) Fourteen police officers assumed strategic positions inside and outside the school. Accompanied by a drug-sniffing clog, officers. Some with guns drawn, secured a school hallway and ordered more than I 00 students to get on their knees and face the wall, handcuffing at least 12 who failed to immediately obey the police orders. Alerted by the clog. police physically searched students, …

Property, Michael A. Heller

Faculty Scholarship

This article argues that despite its seeming disintegration, property is more vibrant than ever — it is a field that has focused on understanding the formal and informal institutions by which society channels decision-making for scarce resources. Many exciting recent innovations in property theory have arisen through dialogue between US and Commonwealth scholars and legislatures. The article is organized as follows. The first part explains the focus on analytic property theory, which is posed in distinction to a jurisprudential approach. The second part introduces the familiar division of ownership into a trilogy of ideal types: private, commons, and state. The …

Marriage Equality In New Jersey, Suzanne B. Goldberg

Faculty Scholarship

The question at the heart of the current challenge to New Jersey's marriage law is not a complicated one: Can the state maintain different rules for recognizing the relationships of gay and non-gay couples?

Introduction By George A. Bermann, George A. Bermann

Faculty Scholarship

The accountability of states and state actors on the international scene is on a forward march. The fora in which this development is playing itself out are multiple: national courts of the state actor, national courts of other states, international tribunals of a more or less public law variety, private international law tribunals, and all manner of hybrids.

Adversary Proceedings In Bankruptcy: A Sideshow, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Across a broad range of cases, the civil trial is disappearing. In the early 1960s, about twelve percent of federal civil cases were resolved by trial; by 2002 that percentage had fallen to less than two percent. This sharp decline raises important questions about the quality y and costs of decisionmaking in federal district courts. After all, these courts exist to resolve cases and controversies. It matters whether (and why) these disputes are resolved in or outside the courtroom.

Marc Galanter and Elizabeth Warren suggest that the same thing is happening in the bankruptcy courts and that there is likewise …

Agora: Icj Advisory Opinion On Construction Of A Wall In The Occupied Palestinian Territory: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

Only rarely does an international judicial opinion attract attention on the front pages of newspapers around the world, and spur activism-or condemnation-from diverse segments of global civil society. The advisory opinion of the International Court of Justice Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory is such a case. As the Court recognized in addressing the question put to it by the United Nations General Assembly, the choice of the term "wall" to designate the subject matter of the proceeding already opens up an area of debate, since not all of the contested structure is …

The First Amendment's Original Sin, Lee C. Bollinger

Faculty Scholarship

Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of …

Causation By Presumption? Why The Supreme Court Should Reject Phantom Losses And Reverse Broudo, John C. Coffee Jr.

Faculty Scholarship

Over a quarter of a century ago, Judge Henry Friendly coined the term "fraud by hindsight" in upholding the dismissal of a proposed securities class action. As he explained, it was too simple to look backward with full knowledge of actual events and allege what should have been earlier disclosed by a public corporation in its Security and Exchange Commission (SEC) filings. Because hindsight has twenty/twenty vision, plaintiffs could not fairly "seize [] upon disclosures" in later reports, he ruled, to show what defendants should have disclosed earlier.

Today, a parallel concept – "causation by presumption" – is before the …

Some Reflections On Two-Sided Markets And Pricing, Victor P. Goldberg

Faculty Scholarship

We want to join Bob Pitofsky in thanking the participants in this symposium for their thoughtful contributions. The literature on two-sided markets, both analytical and policy oriented, has mushroomed and this timely set of essays represents a significant contribution. The first generation of this literature grew up around the credit card industry, largely as a result of the antitrust litigation that challenged a wide range of standard practices in that industry. However, the theoretical problems that were first uncovered in this context extend to many other activities as well. The full range of papers found in this symposium, which have …

Takeovers In The Boardroom: Burke Versus Schumpeter, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

We are delighted to participate in a 25th anniversary assessment of Martin Lipton's 1979 article, Takeover Bids in the Target's Boardroom. This is a remarkably prescient article that demonstrates an uncanny ear for an emerging issue. From his vantage point inside targets' boardrooms – and, we assume, also from inside the nearby offices of investment bankers – Lipton spotted a gathering storm on the horizon and sought to channel the emerging issue of takeover policy in a direction that accorded with his own fundamental convictions as well as the interests of his clients. As every academic knows, early intervention …

Celebrating Stanley Lubman, Benjamin L. Liebman, R. Randle Edwards

Faculty Scholarship

On April 15, 2005 more than sixty scholars from China, North America, and Europe gathered at Columbia Law School for a conference in honor of Stanley Lubman. The conference celebrated Stanley's seventieth year-and more importantly, his tremendous contribution to the field of Chinese legal studies. This special edition of the Columbia Journal of Asian Law includes a selection from the twenty papers presented at the conference.

Religious Freedom In Philadelphia, Philip A. Hamburger

Faculty Scholarship

Some controversies seem particularly significant for the development of constitutional rights. For the freedom from an establishment of religion, the most famous early debate occurred in Virginia in the mid-1780s. For the more immediate freedom of religion, however – the freedom from penalty or constraint on religion – the central historical debate is less familiar. It was in some respects merely a local quarrel, which embroiled Quakers and Revolutionaries in Philadelphia during a few tense weeks in 1775. Nonetheless, it was a revealing moment in the development of American religious liberty. At a time when Americans were struggling for equality …

The Myth Of Instrumental Rationality, Joseph Raz

Faculty Scholarship

My main aim is to explain the normative character of the phenomena that are commonly discussed when theoretical writers discuss instrumental rationality and instrumental reasons. The discussion will assume that there are forms of practical normativity, of practical reasons, which are not instrumental in nature. The question central to the inquiry is what, if any, normative difference does adopting or having an end make? For example, are there instrumental reasons and, if there are, how do they relate to having ends? Are instrumental reasons distinctive kinds of reasons, whose normativity differs in its underlying rationale from that of, say, moral …

Let's Stick Together (And Break With The Past): The Use Of Economic Analysis In Wto Dispute Litigation, Petros C. Mavroidis

Faculty Scholarship

The treatment of a number of issues that are being routinely discussed in WTO dispute settlement practice could benefit substantially, were economists to be institutionally implicated in the process. As things stand, the participation of economists in dispute settlement proceedings is infrequent and erratic: for all practical purposes, it depends on the discretion of WTO adjudicating bodies. There is indirect evidence that recourse to such expertise has been made, albeit on very few occasions. Institutional reforms are necessary; otherwise, it seems unlikely that the existing picture will change in the near future. A look into ongoing negotiations on the DSU …

Rescuing Federalism After Raich: The Case For Clear Statement Rules, Thomas W. Merrill

Faculty Scholarship

The Rehnquist Court's federalism jurisprudence began with a focus on clear statement rules, but then turned to prohibitory limits on the scope of federal power. This Article specifies the differences between clear statement rules and prohibitory limitations, and outlines some of the factors courts should consider in determining which strategy to pursue in any given context. The Article argues that the scope of the Commerce Clause is an issue that should be resolved using clear statement rules. The Court's decision in United States v. Lopez to follow a prohibitory approach was both strategically mistaken and poorly executed. Although the principles …

The Post-Enron Identity Crisis Of The Business Lawyer, William H. Simon

Faculty Scholarship

The practices and institutions of business lawyering are undergoing a reassessment and revision as radical as anything that has occurred since the late nineteenth century, when the modern professional association and the modern corporate law firm were born. The pace of change has intensified,but its directions remain contested. The articles in this colloquium depict a corporate bar torn between competing role conceptions along a variety of dimensions.

Earnings Management As A Professional Responsibility Problem, William H. Simon

Faculty Scholarship

Not infrequently, managers of public companies propose to do things – rearrange their operations, restructure assets and liabilities, sell and buy property – solely for the purpose of achieving accounting effects they desire. Most often they want an increase in current reported earnings per share, though sometimes they prefer a current decrease in the earnings they would otherwise report when it will allow them to show a smoothly increasing pattern of earnings in the future.

Sometimes the desired effects require outright lying or violations of Generally Accepted Accounting Principles (GAAP), in which cases the maneuvers are plainly illegal. But even …

Medical Error Disclosure, Mediation Skills, And Malpractice Litigation: A Demonstration Project In Pennsylvania, Carol B. Liebman, Chris Stern Hyman

Faculty Scholarship

In the past decade, the cost of medical malpractice insurance has skyrocketed in Pennsylvania. Physicians in high-risk specialties are reported to have moved out of the state, closed their practices, or retired, particularly in eastern Pennsylvania. Liability insurance companies have pulled out of the state. At the same time, serious medical errors continue to occur. Doctors and hospital officials, afraid of lawsuits and loss of insurance coverage, often stonewall patients and relatives, offering only barebones explanations of serious medical errors. Research shows this situation creates a vicious circle in which frustration, anger, and a search for information often motivate patients …

A Freedom-Promoting Approach To Property: A Renewed Tradition For New Debates, Jedediah S. Purdy

Faculty Scholarship

This should be a heady time for theorists and practitioners of property law. Some of the most important recent proposals to improve human wellbeing rest on the expansion or reform of property rights. From Peru, the political economist Hernando de Soto recently captured the world's attention by contending that a lack of property rights stands between the slum dwellers of the world's poor countries and new horizons of prosperity. Nearer home, Yale economist Robert Shiller has proposed a new market in risk, essentially propertizing present expectations of good fortune, which would represent one of the most dramatic expansions in the …

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 …

Electing Delegates To A State Constitutional Convention: Some Legal And Policy Issues, Richard Briffault

Faculty Scholarship

On July 6, 2004, then-Governor James E. McGreevey signed into law a measure intended to address one of New Jersey's most contentious and explosive issues, the property tax. The law called for the creation of the Property Tax Convention Task Force (the "Task Force") to develop recommendations concerning the design of a state constitutional convention for revamping the existing property tax system. In addition to analyzing the scope, operation, and timing of a property tax convention, one of the principal tasks of the Task Force was to determine the method for the election of delegates. The New Jersey Constitution is …

Untied States: American Expansion And Territorial Deannexation, Christina Duffy Ponsa-Kraus

Faculty Scholarship

At the beginning of the twentieth century the United States laid claim to an overseas empire, consolidating its victory in the Spanish-American War by adopting novel structures of colonial rule over a brace of newly acquired island territories. A set of Supreme Court decisions known collectively as the Insular Cases established the legal authorization for this undertaking. As the traditional story goes, they did so by holding that the U.S. Constitution did not "follow the flag" to the recently annexed possessions in the Pacific Ocean and the Caribbean Sea: thus unfettered, an ambitiously imperial nation could attend to the business …

Holmes And The Marketplace Of Ideas, Vincent A. Blasi

Faculty Scholarship

At least five basic values might be served by a robust free speech principle: (1) individual autonomy; (2) truth seeking; (3) self-government; (4) the checking of abuses of power; (5) the promotion of good character. Free speech might serve one or more of these values by functioning in at least three different ways: (1) as a privileged activity; (2) as a social mechanism; (3) as a cultural force. My contention is that the conventional understanding of the most familiar metaphor in the First Amendment lexicon, the "marketplace of ideas," has had the undesirable effect of focusing attention too much on …

Child Custody, Religious Practices, And Conscience, Kent Greenawalt

Faculty Scholarship

This article asks to what extent considerations relating to religion should figure in custody disputes. One inquiry is whether the kind of religious life that a parent plans for his or her child should figure in the decision whether to grant custody to that parent. The article focuses on a religious life that involves very substantial deprivation no after-school activities, no television, no pets, no reading except schoolwork and the Bible-from an ordinary secular perspective. A second inquiry is whether one parent of a divorced couple should be able to prevent the other parent from exposing a child to various …

Contractual Incompleteness: A Transactional Perspective, Avery W. Katz

Faculty Scholarship

Recent scholarship in the field of contract law has concentrated on contractual incompleteness-that is, on the fact that except in the simplest and most basic transactions, contracting parties do not work out all of the relevant details and contingencies of their relationship at the outset. The reasons for incomplete contracts are varied. Sometimes parties deliberately leave terms unresolved, trusting future negotiations or social norms to fill in any problems that emerge. Other times, they leave terms unresolved without realizing they have done so, in part because they devote limited attention or resources to their negotiations and in part because contracts …

An Idea Whose Time Has Come – But Where Will It Go, Jane C. Ginsburg

Faculty Scholarship

This Reply picks up where Professor Miller's bold proposal leaves off: with the private international law and international copyright implications of state common law protection for idea-submitters. We will first address the compatibility of the proposal with international copyright norms disqualifying ideas from copyright protection. We will then turn to the consequences of the proposal for a federal system. Professor Miller's article thoroughly examines one aspect of the federalism problem, that of federal copyright policy preemption of statebased idea protection. But in advocating a regime constricted to the fifty separate states, not all of whose courts choose to secure idea …

Medellin V. Dretke: Federalism And International Law, Curtis Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This evening, we're going to have, at the very least, a discussion which may blossom into a debate-we will see as the evening progresses. However one characterizes the event, we're here to discuss the Medellin v. Dretke case and, more broadly, we are going to be discussing cutting edge issues of international law, including the operation of self-executing treaties and state legal systems, the weight to be given to judgments of international courts interpreting such treaties, and the duties of state and federal judiciaries in this process, all in the context of death penalty cases. Let me give you a …

Imagining Lesbian Legal Theory, Kendall Thomas

Faculty Scholarship

It’s great to be here for this particular occasion to honor the work of Ruthann Robson, from whom I have, over the course of many years, learned so much.

First, I’ve learned from her the critical importance of doing work that is based on and reflects a set of political and ethical commitments to people who live under regimes of domination and inequality. Her scholarship, to me, is a model of engaged adversary scholarship. She has never fallen into the trap, so common to those of us who are professionalized in the legal academy, of thinking that this work does …