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1996

Columbia Law School

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Full-Text Articles in Law

Changing Times: The Apa At Fifty, Peter L. Strauss Jan 1996

Changing Times: The Apa At Fifty, Peter L. Strauss

Faculty Scholarship

In early October 1995, Walter Gellhorn helped to open a National Archives display commemorating the fiftieth birthday of the Administrative Procedure Act ("APA"). That Act had begun to take shape just prior to World War II, when Gellhorn had directed the Attorney General's Committee on Administrative Procedure. Created in response to a political spasm of legislative activity that produced a "reform" bill President Roosevelt vetoed, Gellhorn's committee engaged in a thorough and careful survey of administrative agencies and their procedures. In the end, the committee produced twenty-seven monographs describing the variety of decision-making processes employed by the agencies ...


Administrative Law: The Hidden Comparative Law Course, Peter L. Strauss Jan 1996

Administrative Law: The Hidden Comparative Law Course, Peter L. Strauss

Faculty Scholarship

What does today's Administrative Law course give your students that you might not be aware of and might be helped by knowing? That, as I understand it, is the question I am to answer. But we may also want to think about the overall shape of the curriculum: it may be useful to ask about fundamental issues our students may not be aware of, that may not be dealt with elsewhere in the law school curriculum. I'll spend most of my time on the question I've been asked to address, but I hope you will accept a ...


The First Shall Be Last: A Contextual Argument For Abandoning Temporal Rules Of Lien Priority, Ronald J. Mann Jan 1996

The First Shall Be Last: A Contextual Argument For Abandoning Temporal Rules Of Lien Priority, Ronald J. Mann

Faculty Scholarship

Within the academic circles of commercial law, secured credit is about as hot as a topic can get. For a good fifteen years, leading scholars have argued contentiously about the most fundamental questions concerning secured credit: not just about the policies that might justify the law's protection of secured creditors, but more fundamentally about the seemingly obvious question of why businesses and their creditors choose to grant collateral to secure their payment obligations. The extensive and inconclusive debate in the academic literature has not, however, undermined the confidence in secured credit exhibited by the law-reform institutions of the profession ...


F. Hodge O'Neal Corporate And Securities Law Symposium: Path Dependence And Comparative Corporate Governance, Ronald J. Mann, Curtis J. Milhaupt Jan 1996

F. Hodge O'Neal Corporate And Securities Law Symposium: Path Dependence And Comparative Corporate Governance, Ronald J. Mann, Curtis J. Milhaupt

Faculty Scholarship

The study of institutions, and particularly the study of institutions that societies use to govern business enterprises, is at a point of transition. In the last two or three decades, scholars focusing on economic principles to define appropriate legal rules and corporate institutions rose up to challenge the traditional orthodoxy of corporate governance found in the Berle and Means corporation.

One of the most exciting trends in the literature rests upon the "increasing marginal returns" school of economics associated with Brian Arthur and the Santa Fe Institute. The traditional neoclassical economic theory of production, familiar from decades of undergraduate and ...


What Does A White Woman Look Like? Racing And Erasing In Law, Katherine M. Franke Jan 1996

What Does A White Woman Look Like? Racing And Erasing In Law, Katherine M. Franke

Faculty Scholarship

In significant ways, legal texts produce a narrative of national identity. They weave stories about who we are, what we are committed to, and what we expect of one another, individually and collectively. The concept of justiciability can be understood as a set of rules determining what stories courts are allowed to tell about who we are and who we can be. In this sense, Ronald Dworkin's account of judging as writing ongoing chapters in a chain novel provides a compelling conception of law as both describing where we have been and directing where we are going. If the ...


Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffery Fagan, Martin Guggenheim Jan 1996

Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffery Fagan, Martin Guggenheim

Faculty Scholarship

Since 1970, legislatures have increasingly relied on preventive detention – detention before trial ordered solely to prevent an accused from committing crime during the pretrial period – as an instrument of social control. Prior to this period, detention before trial was usually ordered only to assure an accused's presence at trial or to ensure the integrity of the trial process by preventing an accused from tampering with witnesses. Today, the majority of states and the federal system have changed their laws to allow judges to detain arrestees who pose a risk to society if released during the pretrial period. Half of ...


Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt Jan 1996

Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt

Faculty Scholarship

Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.

Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme Court ...


Walter Gellhorn, Peter L. Strauss Jan 1996

Walter Gellhorn, Peter L. Strauss

Faculty Scholarship

Walter Gellhorn had been a primary figure in administrative law and at Columbia for thirty-five years when I arrived here twenty-five years ago, hoping to establish a scholarly career. Yet it is impossible to recall any expectations I might have had about my relationship with him at the time. He was the unseen father of a camp and college friend whose warmth and wit I had cherished, more than he was a dominant member of Columbia's remarkable faculty. He quickly became my mentor and guide. I seem to have spent all the time since that day learning at his ...


When Should An Offer Stick? The Economics Of Promissory Estoppel In Preliminary Negotiations, Avery W. Katz Jan 1996

When Should An Offer Stick? The Economics Of Promissory Estoppel In Preliminary Negotiations, Avery W. Katz

Faculty Scholarship

The purpose of this Article is to examine the doctrine of promissory estoppel, as it applies in the context of preliminary negotiations, from the viewpoint of the economic theory of rational choice. This is part of a larger project that attempts to understand better the regulatory role of contract formation law generally. From a regulatory vantage point, estoppel and related legal doctrines operate as economic regulations; they shape the bargaining process by influencing the negotiators' incentives to make and to rely on preliminary communications. As with all economic regulations, however, some rules do better than others at promoting efficient exchange ...


We The People[S], Original Understanding, And Constitutional Amendment, Henry Paul Monaghan Jan 1996

We The People[S], Original Understanding, And Constitutional Amendment, Henry Paul Monaghan

Faculty Scholarship

Recent legal and political activity and renewed academic discussion have focused considerable attention on the nature of the federal system that the founders created some two hundred years ago. In two important decisions in the 1994 Term, the Supreme Court addressed this issue. No fewer than fifteen states have recently passed resolutions reasserting the importance of the Tenth Amendment – the constitutional affirmation of the limits on national authority. Additionally, legal academics have advanced arguments intended to alter settled understandings about the constitutional framework established in 1789. This widespread reexamination of the nature and limitations of our federal system has the ...


Separating From Children, Carol Sanger Jan 1996

Separating From Children, Carol Sanger

Faculty Scholarship

On September 1, 1939, in anticipation of the imminent German bombing of British cities, 150,000 children were assembled at the railway stations of London and sent throughout the day to "'destinations unknown'" in the English countryside. Mothers and children under five were evacuated together but school-age children were shipped out to rural billets in school groups, accompanied only by their teachers and civil defense volunteers. Forty years later, an observer remembered the day vividly:

[T]he mothers [were] trying to hold back their tears as they marched these little boys and girls in their gas masks into the centre ...


Bargaining About Future Jeopardy, Daniel Richman Jan 1996

Bargaining About Future Jeopardy, Daniel Richman

Faculty Scholarship

The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants – those who plead guilty instead of standing trial – the Double Jeopardy Clause simply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring the dynamics ...


Cooperating Defendants: The Costs And Benefits Of Purchasing Information From Scoundrels, Daniel Richman Jan 1996

Cooperating Defendants: The Costs And Benefits Of Purchasing Information From Scoundrels, Daniel Richman

Faculty Scholarship

Only the most unreflective prosecutor can avoid feeling ambivalent about cooperation. Without the assistance of defendants willing to trade testimony for the expectation of sentencing discounts, many cases worth prosecuting could not be made. But if a prosecutor maintains any distance from these defendants – as he must – he is bound to be troubled by the magnitude of the discounts that the federal system (like other systems) gives to cooperators, many of whom rank as some of the most odious people he has ever met.

The idea of purchasing testimony through sentencing discounts has a long history, of course, as have ...


The Sovereign Immunity Exception Comment, Henry Paul Monaghan Jan 1996

The Sovereign Immunity Exception Comment, Henry Paul Monaghan

Faculty Scholarship

Seminole Tribe v. Florida is the 1995 Term's illustration of the importance that a narrow, but solid, five-Justice majority of the Supreme Court attaches to the constitutional underpinnings of "Our Federalism." In Seminole Tribe, this majority declared that Congress lacks authority under its Article I, Section 8 regulatory powers to subject unconsenting states to suits initiated in federal court by private persons. The very same majority had previously made clear its intention to implement the original constitutional understanding of a national government of limited powers, especially when the national government attempted to "commandeer" state legislative and administrative processes. This ...


Three Models Of Affirmative Action Beneficiaries, Thomas W. Merrill Jan 1996

Three Models Of Affirmative Action Beneficiaries, Thomas W. Merrill

Faculty Scholarship

What has caused the affirmative action debate to become so acrimonious? Perhaps some insight may be gained By considering three competing models of affirmative action beneficiaries that underlie this debate: (1) the outsider group model; (2) the interest group model; and (3) what I will call the adversity group model.


Bork V. Burke, Thomas W. Merrill Jan 1996

Bork V. Burke, Thomas W. Merrill

Faculty Scholarship

I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of ...


From Expertise To Politics: The Transformation Of American Rulemaking, Peter L. Strauss Jan 1996

From Expertise To Politics: The Transformation Of American Rulemaking, Peter L. Strauss

Faculty Scholarship

In this speech to be given on November 15, 1996, as the American contribution to the week-long conference on administrative law sponsored by the Fundaci6n Estudios de Derecho Administrativo in Caracas, Venezuela, Professor Peter L. Strauss addresses the history and developing political character of rulemaking in federal law over the fifty years since enactment of the Administrative Procedure Act. As a framework, Professor Strauss sets forth a hierarchy of institutional rulemaking, from constitution through informal advising. He then develops his discussion of rulemaking by tracing the federal process of rulemaking through time, beginning with the enactment of the Administrative Procedure ...


Positivism And The Separation Of Law And Economics, Avery W. Katz Jan 1996

Positivism And The Separation Of Law And Economics, Avery W. Katz

Faculty Scholarship

The modem field of law and economics – that is, the application of economic analysis to legal subjects other than trade and business regulation – is now over thirty years old, but it remains controversial in the legal academy and, to a lesser extent, in the profession at large. Since its beginnings in the early 1960s, the economic approach has provoked substantial opposition and antagonism. The sources of this resistance, however, are a matter of dispute. Many economists and economically influenced lawyers attribute it to more traditional lawyers' reluctance to learn a new and unfamiliar set of concepts and techniques. Critics of ...


Separating From Children, Carol Sanger Jan 1996

Separating From Children, Carol Sanger

Faculty Scholarship

In this article I want to challenge the existing rules of maternal engagement and reconsider how we think about separations between mothers and their children as a matter of cultural inquiry and as a matter of law. Specifically, I examine the ways in which law regulates this complex but not uncommon aspect of motherhood and compare legal assessments about maternal decisions to separate from children with the judgments of mothers themselves. My argument is that the present scheme of regulation sustains social understandings regarding mother-child separations with little attention to the circumstances of mothers' lives that prompt their decisions to ...


The First Shall Be Last: A Contextual Argument For Abandoning Temporal Rules Of Lien Priority, Ronald J. Mann Jan 1996

The First Shall Be Last: A Contextual Argument For Abandoning Temporal Rules Of Lien Priority, Ronald J. Mann

Faculty Scholarship

This paper is an empirical and analytical investigation of priority in construction lending. It rests on a substantial set of interviews with construction lenders and borrowers. Generally, it argues that construction lenders are better placed than mechanic's lien claimants to implement procedures that limit the risk of borrower defalcation. Accordingly, it recommends a reversal of the ordinary rule of priority, which permits construction lenders to have priority over mechanic's lien claimants. A reversal of the rule of priority will more effectively police borrower defalcation.


Regulatory Cooperation Between The European Commission And U.S. Administrative Agencies, George Bermann Jan 1996

Regulatory Cooperation Between The European Commission And U.S. Administrative Agencies, George Bermann

Faculty Scholarship

This Article examines the policies and practices of the European Commission toward various forms of bilateral regulatory cooperation with administrative agencies of the United States. To place this Article's findings in a proper perspective, it is essential to understand both (A) the selection of the European Community (E.C.) as an appropriate overseas regulatory jurisdiction for such cooperation and (B) the reasons for focusing on the European Commission among the various E.C. institutions. Those questions are taken up in this Introduction. Part I describes in some detail the organization and functioning of the Commission. Part II – the core ...


The Roles Of The State And The Market In Establishing Property Rights, Andrzej Rapaczynski Jan 1996

The Roles Of The State And The Market In Establishing Property Rights, Andrzej Rapaczynski

Faculty Scholarship

Using the experiences of Eastern Europe as an example, this article argues that, contrary to the economists' assumption that property rights are a precondition of a market economy, market institutions are often a prerequisite for a viable private property regime. Progress in the development of complex property rights in Eastern Europe, thus, cannot be expected to come primarily from a perfection of the legal system. Instead, it is more likely to arise as a market response to the demand for property rights. Indeed, legal entitlements can only be expected to become effective against a background of self-enforcing market mechanisms.


The Role Of Firearms In Violence "Scripts": The Dynamics Of Gun Events Among Adolescent Males, Deanna L. Wilkinson, Jeffrey Fagan Jan 1996

The Role Of Firearms In Violence "Scripts": The Dynamics Of Gun Events Among Adolescent Males, Deanna L. Wilkinson, Jeffrey Fagan

Faculty Scholarship

In recent years, the use and deadly consequences of gun violence among adolescents has reached epidemic proportions. At a time when national homicide rates are declining, the increasing rates of firearm deaths among teenagers is especially alarming. Deaths of adolescents due to firearm injuries are disproportionately concentrated among nonwhites, and especially among African-American teenagers and young adults. Only in times of civil war have there been higher within-group homicide rates in the United States. There appears to be a process of self-annihilation among male African-American teens in inner cities that is unprecedented in American history. Unfortunately, few studies have examined ...


Corporate Governance And Economic Efficiency: When Do Institutions Matter?, Ronald J. Gilson Jan 1996

Corporate Governance And Economic Efficiency: When Do Institutions Matter?, Ronald J. Gilson

Faculty Scholarship

Until the 1980s, corporate governance was largely the province of lawyers. It was a world of specific rules – more or less precise statutory requirements governing shareholder meetings, the election of directors, notice requirements and the like – that were essentially unrelated to what corporations actually do. From this perspective, the corporation's productive activity was simply a black box onto which standard governance structures were superimposed with little effect on what took place within. Corporate law was "trivial" or, as Bayless Manning so evocatively portrayed it, simply "great empty corporation statutes – towering skyscrapers of rusted girders internally welded together and containing ...


The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier Jan 1996

The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier

Faculty Scholarship

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American.

Those of us pursuing ...


Confusing Punishment With Custodial Care: The Troublesome Legacy Of Estelle V. Gamble, Philip Genty Jan 1996

Confusing Punishment With Custodial Care: The Troublesome Legacy Of Estelle V. Gamble, Philip Genty

Faculty Scholarship

For the better part of two centuries, imprisonment has been the primary means of punishment for non-capital offenses in the United States. A person, once convicted, is turned over to an institution that will regulate every minute of her or his life. Yet, despite the central role that prisons have long played in our society, the use of the Constitution to regulate conditions of confinement in prisons is a relatively recent phenomenon. Certainly, part of this has to do with the fact that constitutional litigation did not begin in earnest until the "rediscovery" of the Civil War era civil rights ...


Domination In Wrongdoing, George P. Fletcher Jan 1996

Domination In Wrongdoing, George P. Fletcher

Faculty Scholarship

Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs. Both crimes and torts claim victims, however, the victims' responses vary according to context. In criminal cases, the victim responds by hoping that the government will apprehend and successfully prosecute the offender. In tort disputes, the victim responds by demanding compensation.

It is unclear, however, what constitutes wrongdoing. Defining wrongdoing as the violation of rights is unhelpful, for that definition only raises other questions: Who has rights and what is their content? Therefore, to understand the nature of wrongdoing, we should seek a substantive theory ...


The Future Of The Private Securities Litigation Reform Act: Or, Why The Fat Lady Has Not Yet Sung, John C. Coffee Jr. Jan 1996

The Future Of The Private Securities Litigation Reform Act: Or, Why The Fat Lady Has Not Yet Sung, John C. Coffee Jr.

Faculty Scholarship

Much commentary about securities litigation shares the implicit premise that the Private Securities Litigation Reform Act of 1995 (Reform Act) is, for better or worse, a fait accompli – that is, legislation whose meaning is fixed and whose impact, while still debatable, is not contingent on future events. This Article sees it differently: the Reform Act is more like wet clay that has been shaped into an approximation of a human form by an apprentice craftsmen and has now been turned over to the master sculptor for the details that will spell the difference between high art and merely competent mediocrity ...


Comment On Moliterno, Legal Education, Experiential Education, And Professional Responsibility, Lance Liebman Jan 1996

Comment On Moliterno, Legal Education, Experiential Education, And Professional Responsibility, Lance Liebman

Faculty Scholarship

In attempting to predict and prescribe the future, my vision of the recent history of legal education differs from Professor Moliterno's in certain relevant ways.

I graduated from Law School in 1967. I learned largely through doctrinal courses that delivered steady training in thinking like a lawyer and information about areas of law. These courses exposed me and my classmates to legal lingo and to the standard types of legal arguments. We learned, largely by hearing the teacher and our fellow students, to make verbal moves and to see the strengths and limitations of others' argumentation skills and techniques ...


Should Lawyers Obey The Law?, William H. Simon Jan 1996

Should Lawyers Obey The Law?, William H. Simon

Faculty Scholarship

At the same time that it denies authority to nonlegal norms, the dominant view of legal ethics (the "Dominant View") insists on deference to legal ones. "Zealous advocacy" stops at the "bounds of the law."

By and large, critics of the Dominant View have not challenged this categorical duty of obedience to law. They typically want to add further public-regarding duties, but they are as insistent on this one as the Dominant View.

Now the idea that lawyers should obey the law seems so obvious that it is rarely examined within the profession. In fact, however, once you start to ...