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Virtual Logrolling: How The Court, Congress, And The States Multiply Rights, William N. Eskridge Jr., John Ferejohn Jan 1995

Virtual Logrolling: How The Court, Congress, And The States Multiply Rights, William N. Eskridge Jr., John Ferejohn

Faculty Scholarship Series

Mary Ann Glendon maintains that the United States has created too many legal rights in the last two generations. She argues, to an increasingly receptive audience, that this multiplication of rights threatens both national values and efficiency. The critique of rights can be seen as containing both normative and positive aspects. The expansion of rights-oriented discourse is said by some to impoverish political debate by posing public issues in rigid and inflexible terms that limit our capacity to find solutions. The creation of new rights is also thought to diminish our commitment to older and perhaps more fundamental rights. Moreover ...


The Criminal Jury In Our Time, Kate Stith Jan 1995

The Criminal Jury In Our Time, Kate Stith

Faculty Scholarship Series

In this essay, I consider the present discomfort with the jury in the context of our larger legal discourse. There is much about the jury (civil as well as criminal, though I am here concerned only with the latter) that does not fit comfortably into our modem constitutional and political culture. Many preeminent constitutional values of the founding period-private liberty, federalism, and local control-were well served by a requirement of jury verdicts in criminal trials. Over the past two hundred years, these values have been challenged, if not eclipsed, by competing values. Some essential characteristics of the jury--or, at least ...


Sentencing Women, Judith Resnik Jan 1995

Sentencing Women, Judith Resnik

Faculty Scholarship Series

The Federal Sentencing Reporter has provided an important service by publishing this symposium, Gender and Sentencing. I am honored to participate by offering a few introductory comments.

A thoughtful group of commentators tum our attention to the distinctive issues facing women who are defendants in the federal criminal justice system. While many may aspire to a legal system in which gender has no relevance, we live in a world in which gender, race, and ethnicity structure so many aspects of our lives that one cannot but ask: What, if any, are the effects of gender on women who are defendants ...


The Moral Significance Of Nationalism, Lea Brilmayer Jan 1995

The Moral Significance Of Nationalism, Lea Brilmayer

Faculty Scholarship Series

Given the current world situation, it is certainly no surprise that philosophers
and political theorists are paying increasing attention to the topic
of nationalism. It is not an easy subject to study, in part because the word
means such different things to different people. There are many areas of
disagreement. What counts as a "nation"? Is a nation defined by its language?
by its culture? by ethnicity? What is the relationship between nationalism
and the state? What are the historical origins of nationalism?


Transforming International Politics: An American Role For The Post Cold War, Lea Brilmayer Jan 1995

Transforming International Politics: An American Role For The Post Cold War, Lea Brilmayer

Faculty Scholarship Series

Most of us find the events of the last five or six years nothing short
of astounding. It is not simply that the Cold War has ended, but that it
ended so fast and with so little resistance. Already it has become difficult
to explain to students in international relations classes the attitudes
of authors who wrote just eight or ten years ago. Some of these
students were only starting college or were still in high school when
the Berlin Wall came down, and in the years prior to that, the Soviet
Union had already started its fundamental transformation. l ...


What’S The Matter With Selective Intervention?, Lea Brilmayer Jan 1995

What’S The Matter With Selective Intervention?, Lea Brilmayer

Faculty Scholarship Series

"Nothing," most Americans would probably respond. Most Americans
would claim that it is for the United States to decide for itself whether it wants
to engage or not in conflicts that arise around the world, consulting only its
own people and its own preferences. Most Americans find nothing wrong with
the United States involving itself in the Persian Gulf but not in Yugoslavia; in
Haiti but not Liberia; in Somalia but not Rwanda. Perhaps the patterns of
American engagement we see are morally defensible; perhaps they are not. But
whether or not it would actually be possible to morally reconcile ...


The Evolution Of United Nations Peacekeeping, Ruth Wedgwood Jan 1995

The Evolution Of United Nations Peacekeeping, Ruth Wedgwood

Faculty Scholarship Series

Does multilateralism deserve moral suspicion? It is a well-put question, worth facing prior to our inquiry into peacekeeping. Some of the classical conditions of peacekeeping will be newly explicable; the classical limits to peacekeeping fit these moral concerns.

Traditionally, multilateralism has been challenged as a road to lassitude, inaction and self-defeat. The suggestion here is different. Professor Fernando Tesón has argued that multilateralism may fall prey to the moral short-sightedness of a purely self-regarding decision. Indeed, in international law circles, an enthusiasm for multilateralism sometimes brings a suspension of judgment. Even international lawyers who admit the deep interweaving of law ...


Interpreting The Constitution: Is The Intent Of The Framers Controlling? If Not, What Is?, Boris I. Bittker Jan 1995

Interpreting The Constitution: Is The Intent Of The Framers Controlling? If Not, What Is?, Boris I. Bittker

Faculty Scholarship Series

In Brown v. Board ofEducation, decided in 1954, the Supreme
Court held that public school segregation deprived black pupils
of "equal educational opportunities" in violation of the Equal
Protection Clause of the Fourteenth Amendment: "No State shall
... deny to any person within itsjurisdiction the equal protection
of the laws." In reaching this conclusion, however, the Court
said nothing about whether the Framers of the Fourteenth
Amendment-the Congress that drafted the Amendment in
1866 and the States that ratified it in 1866-69-intended to outlaw
segregation in the public schools; instead, the Court treated their
intent as irrelevant, observing that "we cannot ...


Deposit Insurance, The Implicit Regulatory Contract, And The Mismatch In The Term Structure Of Banks' Assets And Liabilities, Jonathan R. Macey, Geoffrey P. Miller Jan 1995

Deposit Insurance, The Implicit Regulatory Contract, And The Mismatch In The Term Structure Of Banks' Assets And Liabilities, Jonathan R. Macey, Geoffrey P. Miller

Faculty Scholarship Series

Professors Macey and Miller explore the relationship between deposit insurance and the mismatch in the term structure of commercial banks I assets and liabilities. After critiquing the traditional regulatory hypothesis, which posits that banks have incentives to.fund long-term assets with short-term liabilities because government-sponsored deposit insurance enhances bank credit and subsidizes short-term liabilities, they use public choice theory to argue that a modified version of the regulatory hypothesis is the best explanation for the mismatch in the term structure of banks I assets and liabilities. Finally, they argue that embracing the regulatory hypothesis does not imply acceptance of the ...


A World Transformed, Harold Hongju Koh Jan 1995

A World Transformed, Harold Hongju Koh

Faculty Scholarship Series

Two decades ago, while Richard Nixon was President and the Vietnam War still raged, ten energetic Yale law students founded Yale Studies in World Public Order. The prologue to their first issue, painstakingly typed and mulitlithed, announced thejournal's commitment "to publishing articles which contribute to the understanding of [a] highly interrelated global process."


Reading The Constitution As Spoken, Jed Rubenfeld Jan 1995

Reading The Constitution As Spoken, Jed Rubenfeld

Faculty Scholarship Series

Constitutional law, which speaks today to almost everything, has nothing to say on one subject. It has no account of its own interpretive method.

The truth is that most of us don't know if the Supreme Court is "interpreting" the Constitution at all anymore. Or whether it ever did. Or what exactly it would mean for the Court to do so. We have in this country a very successful practice of constitutional interpretation coupled with a thoroughgoing cynicism about its coherence and legitimacy.


Free Proof And Its Detractors, Mirjan R. Damaska Jan 1995

Free Proof And Its Detractors, Mirjan R. Damaska

Faculty Scholarship Series

The idea that the law should not assign probative weight to items of information, or degrees of credibility to its bearers, is widely extolled as one of the cornerstones of enlightened factfinding in adjudication. Despite momentous changes that have occurred in the administration ofjustice in this century, the idea continues to command widespread allegiance - especially in the area of criminal procedure. This is not to say, however, that no challenges appeared to the idea in recent years. The first challenge stems from the increased employment over the past few decades of exclusionary rules of evidence. Their application generates frequently overlooked ...


Congressional Powers And Federal Judicial Burdens, Dennis E. Curtis Jan 1995

Congressional Powers And Federal Judicial Burdens, Dennis E. Curtis

Faculty Scholarship Series

Professor Beale's Article, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, is a well-documented plea for the conservation of federal judicial resources in the face of a burgeoning criminal caseload, caused at least in part by the creation of new federal crimes. The "too many" in the title of Professor Beale's Article refers to the current plethora of federal criminal cases that threaten (in the view of many) a docket crisis in the federal courts. The "too few" refers to the ability of federal prosecutors to pursue only a ...


Paint-By-Numbers Tax Lawmaking, Michael J. Graetz Jan 1995

Paint-By-Numbers Tax Lawmaking, Michael J. Graetz

Faculty Scholarship Series

Although their meaning and contours have long been controversial, the general criteria for evaluating changes in tax law enjoy both stability and consensus. At least since Adam Smith, there has been virtually universal agreement that the nation's tax law should be fair, economically efficient, and simple to comply with and to administer. Tax law changes should be designed to make the law more equitable, easier to comply with, more conducive to economic growth, and less likely to interfere with private economic decisionmaking.

Precisely what these criteria imply for policymaking is controversial, however. Fairness is often said to require that ...


Path Dependence, Public Choice, And Transition In Russia: A Bargaining Approach, Jonathan R. Macey, Enrico Colombatto Jan 1995

Path Dependence, Public Choice, And Transition In Russia: A Bargaining Approach, Jonathan R. Macey, Enrico Colombatto

Faculty Scholarship Series

The transition process from communism in Eastern Europe is probably the most important economic challenge in the last twenty years. Some five years have elapsed since the political events that started this process, and in a limited number of countries (the Czech Republic, Slovenia, and the Baltic Republics) transition seems to be heading towards success; in others the prospects remain uncertain (as in Poland) or worrisome (as in Russia). Indeed, as has been observed about the Russian situation, the plausible possible futures for Russia "range from an enticing vision of society A la Milton Friedman to one more in the ...


A Market Approach To Tort Reform Via Rule 23, Jonathan R. Macey, Geoffrey P. Miller Jan 1995

A Market Approach To Tort Reform Via Rule 23, Jonathan R. Macey, Geoffrey P. Miller

Faculty Scholarship Series

In a stimulating paper prepared for this symposium, Professor Richard L. Marcus addresses the proposal to substitute an administrative scheme for all future mass tort claims (and some present ones). Professor Marcus cogently observes that many of the pressure points in mass tort litigation can properly be labeled "substantive"-including all the baggage that such a label carries with it. When dealing with mass tort class actions, federal courts face enormous problems of case management. Creative attempts to deal with such problems, however, often involve the courts altering or amending private rights under state law.


Public Choice Theory And The Transition Market Economy In Eastern Europe: Currency Convertibility And Exchange Rates, Jonathan R. Macey, Enrico Colombatto Jan 1995

Public Choice Theory And The Transition Market Economy In Eastern Europe: Currency Convertibility And Exchange Rates, Jonathan R. Macey, Enrico Colombatto

Faculty Scholarship Series

In 1989, the people of Eastern Europe' revolted against their Communist governments with the hope of achieving political and economic self-determinism. These countries then faced the important challenge of transforming centrally-planned economies into market economies. This transition process has been a topic of much debate among economic theorists with little agreement as to which transition measures should be taken or when they should be executed. Public choice theory provides an analytical framework on which the nature and timing of the transition process can be better understood. The transition process in Eastern Europe is not a result of the uniform application ...


Corporate Governance And Commercial Banking: A Comparative Examination Of Germany, Japan, And The United States, Jonathan R. Macey, Geoffrey P. Miller Jan 1995

Corporate Governance And Commercial Banking: A Comparative Examination Of Germany, Japan, And The United States, Jonathan R. Macey, Geoffrey P. Miller

Faculty Scholarship Series

The current paradigm of corporate governance theory suggests that the Japanese main bank system and the German universal bank system encourage socially optimal corporate decisionmaking. Unlike their Japanese and German counterparts, American banks are barred from taking an active role in corporate governance, both by laws restricting share ownership, and by legal rules which hold banks liable for exerting managerial control over borrowers. The debate among commentators has focused on whether the German and Japanese systems should be viewed as alternatives to the American model. In this article, Professors Macey and Miller challenge the current paradigm by demonstrating that powerful ...


The Solicitor General And The American Legal Ideal, Drew S. Days Iii Jan 1995

The Solicitor General And The American Legal Ideal, Drew S. Days Iii

Faculty Scholarship Series

It is an honor to join the list of illustrious persons who have been asked to deliver the prestigious Alfred P. Murrah Lecture. Although the title of my lecture is "The Solicitor General and the American Legal Ideal," I want to make clear at the beginning that I do not claim for myself the mantle of the ideal lawyer. After being the Solicitor General for almost two years, however, I have reached some tentative observations on how my office, the Office of the Solicitor General of the United States, has in some measure been able to attain and maintain the ...


The Department Of Justice And The Civil Rights Act Of 1964: A Symposium, Drew S. Days Iii Jan 1995

The Department Of Justice And The Civil Rights Act Of 1964: A Symposium, Drew S. Days Iii

Faculty Scholarship Series

This Symposium to commemorate the thirtieth anniversary of the Civil Rights Act of 1964, conducted by the Civil Rights Division Association, was comprised of fonner and current employees of the Civil Rights Division, United States Department of Justice, and was held in Washington, D.C. on Saturday, May 13, 1994. This is a verbatim transcript of the presentation on May 13, 1994.


"Fetch Some Soupmeat", William N. Eskridge Jr. Jan 1995

"Fetch Some Soupmeat", William N. Eskridge Jr.

Faculty Scholarship Series

Although first published over 150 years ago, Francis Lieber's Legal and Political Hermeneutics remains broadly influential, and the soupmeat hypothetical in particular has been reproduced in the most widely read twentieth-century legal texts for teaching statutory interpretation. The directive, "fetch some soupmeat," seems straightforward in most situations, because the housekeeper and the servant are operating under the same assumptions, and because their shared assumptions are borne out as the servant goes about his task. Lieber's project-and the project of any sophisticated theoretical treatment of statutory interpretation-was to explore the many ways in which "fetch some soupmeat" proves susceptible ...


Trust In The Mirror Of Betrayal, Carol M. Rose Jan 1995

Trust In The Mirror Of Betrayal, Carol M. Rose

Faculty Scholarship Series

Lawyers do not have much of a reputation for fostering trust. We insist that ordinary people get everything down on paper, thereby sowing seeds of discord and suspicion; we then figure out ways to weasel out of what look like clear directives, thriving on the very discord we have sown. Perhaps there is some significance in the fact that although the word "trust" figures prominently in some standard legal specialties, one of them is antitrust, a subject in which "trust" can take on sinister connotations.

Nevertheless, even lawyers recognize that trust is a subject of enormous importance in modem ...


On Youth Crime And The Juvenile Court, Stephen Wizner Jan 1995

On Youth Crime And The Juvenile Court, Stephen Wizner

Faculty Scholarship Series

In a thoughtful and provocative essay, Abbe Smith has provided a forceful defense of the juvenile court in response to critics who predict or advocate its demise. She tells a poignant and compelling story of urban youth deprived of their childhood and hope for the future by poverty and racism, drugs and violence, decaying neighborhoods and blighted housing, bad schools and destructive peer influences, parental neglect and abuse, and lack of opportunity. But it is these very youths who cause residents of urban areas to feel increasingly insecure for their personal safety. Compassion for disadvantaged youth does not eliminate our ...


Distinguishing Between Consensual And Nonconsensual Advantages Of Liability Rules, Ian Ayres, Eric Talley Jan 1995

Distinguishing Between Consensual And Nonconsensual Advantages Of Liability Rules, Ian Ayres, Eric Talley

Faculty Scholarship Series

Louis Kaplow and Steven Shavell's thoughtful reply to our recent article contains powerful insights about the relative efficiency of liability and property rules. While we are in agreement that liability rules can be more efficient than property rules when transaction costs are low, we disagree about the cause of this liability-rule advantage. Kaplow and Shaveli believe that liability rules hold only a nonconsensual advantage over property rules (i.e., liability rules tend to induce efficient nonconsensual takings). While granting this oft-recognized nonconsensual advantage, we contend that liability rules may also have a consensual advantage in low-transaction-cost settings (i.e ...


Further Evidence Of Discrimination In New Car Negotiations And Estimates Of Its Cause, Ian Ayres Jan 1995

Further Evidence Of Discrimination In New Car Negotiations And Estimates Of Its Cause, Ian Ayres

Faculty Scholarship Series

A 1991 test of new car dealerships in Chicago indicated that dealerships offered significantly lower prices to white male testers than to similarly situated black and-or female testers: white female testers were asked to pay 40% higher markups than white male testers; black male testers were asked to pay more than twice the markup of white male testers; and black female testers were asked to pay more than three times the markup of white male testers. This article extends the results of this initial test by presenting not only more authoritative evidence of discrimination but also a new quantitative method ...


Supply-Side Inefficiencies In Corporate Charter Competition: Lessons From Patents, Yachting And Bluebooks, Ian Ayres Jan 1995

Supply-Side Inefficiencies In Corporate Charter Competition: Lessons From Patents, Yachting And Bluebooks, Ian Ayres

Faculty Scholarship Series

Judge James K. Logan has taught me a great deal about how to lead a well-integrated professional life. My mind's ear can hear Judge Logan's voice admonishing me to clear my desk of correspondence and other chores before tackling the day's task of writing. I also hear Judge Logan telling me to develop an expertise in one of the private law areas so that my inclination for government intervention will not be marginalized for failure to consider the private reaction of the regulated.

Judge Logan takes tremendous interest in the lives of his clerks. He showed us ...


Mischief And Misfortune, Jules L. Coleman Jan 1995

Mischief And Misfortune, Jules L. Coleman

Faculty Scholarship Series

This article argues that the problems of corrective and distributive justice are, at bottom, the same. The authors argue that both can be understood as responses to the question: who owns which of life's misfortunes? Two extreme but unattractive positions set the range of possibilities. All misfortunes could be left where they fall, or all could be held in common. Neither extreme is attractive, because neither has room for the intuitive idea of responsibility, that is, that people should bear the costs of their activities. Libertarians try to incorporate that idea by adding a rule of strict liability for ...


Mass Torts: An Institutional Evolutionist Perspective, Peter H. Schuck Jan 1995

Mass Torts: An Institutional Evolutionist Perspective, Peter H. Schuck

Faculty Scholarship Series

With the benefit of twenty-five years' experience of mass tort litigation,
it is time to assess what we have learned. Torts scholars have
already arrived at a consensus as telling as it is rare: Although courts
have demonstrated considerable resourcefulness in struggling with
mass torts issues, the overall performance of the litigation system in
this area has been remarkably poor. Some proceduralists have voiced
similar criticisms; generally speaking, however, procedure scholars
seem to be more confident than torts scholars that reform can be acomplished within the basic tort paradigm. In law as in life, familiarity
seems to breed contempt.


The Message Of Proposition 187, Peter H. Schuck Jan 1995

The Message Of Proposition 187, Peter H. Schuck

Faculty Scholarship Series

The latest earthquake out of California is political, not seismic. The reverberations
of Proposition 187 the anti-illegal immigrant initiative on the state's
November 1994 ballot, have already registered high on the Richter scales in state
capitals and Washington, where politicians see that Pete Wilson's firm identification
with Proposition 187 was largely responsible for his sweeping re-election
victory. The law's aftershocks are even unsettling Europe, where leaders in
almost every country face their own immigration crises, desperately seek solutions,
and often look to U.S. experience for guidance.


Remarks Delivered At The Dedication Of A New Building At Brooklyn Law School, Guido Calabresi Jan 1995

Remarks Delivered At The Dedication Of A New Building At Brooklyn Law School, Guido Calabresi

Faculty Scholarship Series

Thank you Joan, David, friends of Brooklyn Law School. It's wonderful for me to be here, to see colleagues from the Second Circuit, and from the Yale Law School, former students—some now on the New York Court of Appeals, a nephew and a niece, classmates, and all sorts of friends, of mine and of the school; here at a great event, a great occasion. The building is magnificent. The building is magnificent. But as someone said of a great, new library: "Do not call the building, the library. The library is inside." So this is not the Brooklyn ...