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The End Of The Market: A Psychoanalysis Of Law And Economics, Jeanne L. Schroeder

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The perfect market is the end of all actual markets - it is their ideal form. In normative economics, actual markets are the means of achieving the end or ideal of the perfect market. But this means that to achieve a perfect market would result in the end of all actual markets. Despite the centrality of the ideal of the perfect market in the subset of law and economics scholarship based on classical price theory, there is surprisingly little literature on its parameters. In this Commentary, Professor Schroeder examines this literature in order to explicate the nature of this ideal. …

Against Free-Form Formalism, David M. Golove

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Article II, Section 2 of the Constitution provides that the President shall have the power to make treaties by and with the consent of two-thirds of tie Senate. Yet, most of the international agreements into which the United States has entered over the last fifty years, including NAFTA and the WTO Agreement, have been concluded as congressional-executive agreements-a procedure by which the President submits an agreement to both houses of Congress for simple majority approvaL In an article in the Harvard Law Review entitled "Is NAFTA Constitutional?," Professors Bruce Ackerman and David Golove attempted to provide this practice with constitutionalfoundations. …

The Problematics Of Moral And Legal Theory, Richard A. Posner

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In these Holmes Lectures, delivered a century after the publication of Oliver Wendell Holmes's great essay The Path of the Law, Judge Posner argues for an essentially Holmesian conception of the proper relations among modern normative moral philosophy ("academic moralism"), morality, and law. Academic moralism, he argues, lacks either the intellectual cogency or the emotional power to change people's beliefs or behavior; the power to do so resides in "moral entrepreneurs," which academic moralists emphatically are not. Academic moralism's lack of cogency disqualifies it to guide judicial decisionmaking even - in fact, especially - in cases involving controversial moral issues, …

A Behavioral Approach To Law And Economics, Cass R. Sunstein, Christine Jolls, Richard H. Thaler

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Economic analysis of law usually proceeds under the assumptions of neoclassical economics. But empirical evidence gives much reason to doubt these assumptions; people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article

Bordetella Holmesii-Like Organisms Associated With Septicemia, Endocarditis, And Respiratory Failure, Perry J. Severance, Yi-Wei Tang, Marlene K. Hopkins, Christopher P. Kolbert, Paul A. Hartley, David H. Persing

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We recovered an unusual bacterial strain from blood or sputum of three patients with septicemia, endocarditis, and/or respiratory failure. The three isolates were thin, curved, gram-negative, light brown, pigment-producing bacilli with variable catalase activity. They were asaccharolytic, oxidasenegative, nonmotile, and fastidious. Identification was not possible on the basis of these characteristics alone or in combination with cellular fatty acid profiles. Nucleic acid amplification and sequence analysis of the 16S rRNA gene revealed that all three isolates were identical and most closely related to the emerging pathogen Bordetella holmesii, diverging from the published sequence at three nucleotide positions (99.8% similarity). …

Sex And Religion In A Midlands Town, Eamon Maher

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Material reproduced by kind permission of Doctrine and Life

Pandora's Amphora: The Ambiguity Of Gifts, Jeanne L. Schroeder

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The law is notoriously suspicious of gifts, giving gratuitous promises less protection than contracts. An analysis based on the political philosophy of G.W.F. Hegel and the psychoanalytic theory of Jacques Lacan reveals that the law's ambivalence reflects the fundamental ambiguous nature of gifts.

The two dominant jurisprudential analyses of gift-utilitarianism and romanticism-share the single erroneous assumption that contract relations are characterized by atomistic rational behavior. The utilitarian, who views all human relations in terms of individual self-interest, analyzes gift as a primitive, incomplete, imperfect, and inferior form of contract. In contrast, the romantic, who believes that human relations can, and …

Pennsylvania Coal V. Mahon: The Erratic Takings Jurisprudence Of Justice Holmes, Richard A. Epstein

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Protecting Property With Legal Remedies: A Common Sense Reply To Professor Ayres, Richard A. Epstein

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Pennsylvania Coal V. Mahon: The Erratic Takings Jurisprudence Of Justice Holmes, Richard A. Epstein

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Professionalisms, Richard A. Posner

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The Demand For Human Cloning, Richard A. Posner, Eric A. Posner

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Incommensurability: Truth Or Consequences?, Brian Leiter

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Article 2b As Legal Software For Electronic Contracting-Operating System Or Trojan Horse?, A. Michael Froomkin

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The proposed draft of Article 2B of the Uniform Commercial Code can be thought of as akin to a complex computer software suite which seeks to dominate a market by offering all things to all people. The author suggests, however, that Article 2B's electronic contracting rules interoperate poorly with existing digital signature laws, and with some forms of electronic commerce. The author also questions whether Article 2B is the proper means to enact controversial rules that ordinarily would make consumers liable for fraudulent uses of their digital signatures by third parties. After considering Article 2B's potential interaction with existing digital …

Informational Regulation And Informational Standing: Akins And Beyond, Cass R. Sunstein

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At The End Of Palsgraf, There Is Chaos: An Assessment Of Proximate Cause In Light Of Chaos Theory, Edward S. Adams, Gordon B. Brumwell, James A. Glazier

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Palsgraf articulated the doctrine of proximate cause, necessary to prove the tort of negligence. Palsgraf needs to be reexamined in light of today's understanding of cause and effect. The case concerned a woman (Mrs. Palsgraf) standing on a train platform who was injured by a roof tile that fell as the result of the vibrations caused by the explosion of another passenger's package. Mrs. Palsgraf sued the railway for negligence and prevailed at the trial court level. The New York Court of Appeals reversed the trial court, however, holding that the railway company's actions were not the proximate cause of …

Youth Violence In America, Mark H. Moore, Michael Tonry

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"We're All Stuck Here For A While": Law And The Social Construction Of The Black Male, D. Marvin Jones

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Domestic Violence In Black And White: Racialized Gender Stereotypes In Gender Violence, Zanita E. Fenton

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Is American Law Inherently Racist Krinock Lecture Series, Richard Delgado, Daniel A. Farber

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Race Trials, Anthony V. Alfieri

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Making Pets: Social Workers, Problem Groups, And The Role Of The Spca--Getting A Little More Precise About Racialized Narratives Commentary, Richard Delgado

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Rodrigo's Roadmap: Is The Marketplace Theory For Eradicating Discrimination A Blind Alley, Richard Delgado

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An Alternative And Discretionary § 1367 (Symposium: A Reappraisal Of The Supplemental Jurisdiction Statute, Title 28 U.S.C. 1367), Edward H. Cooper

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Supplemental jurisdiction is a concept too complex to be captured by complicated statutory drafting. That is my proposition. Or, somewhat more accurately, that is my tentative proposition, advanced for consideration alongside the elegant but intricate statutory proposals emerging from the American Law Institute's Federal Judicial Code Revision Project. Professor John Oakley, the Reporter, knows more about supplemental jurisdiction, and has thought more deeply about it, than anyone. He has traveled many roads in continually refining proposed revisions of 28 U.S.C. § 1367. If anyone can capture all the nuances of supplemental jurisdiction in a statute, it is he, assisted by …

The License Is The Product: Comments On The Promise Of Article 2b For Software And Information Licensing, Robert W. Gomulkiewicz

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Article 2B promises to draw together contract principles for software and information licensing that, at present, are spread among various bodies of law.

This Article argues that Article 2B must affirm industry standard licensing practices in order to prove beneficial. For example, Article 2B's affirmation of industry standard mass market licensing is important for both publishers and end users. Article 2B must also provide the flexibility to accommodate new distribution and licensing models that will arise as electronic commerce matures. Any other approach would fundamentally disrupt the software and information industries.

Moreover, this Article urges the drafters of Article 2B …

Federalism In The Era Of International Standards: Federal And State Government Regulation Of Merchant Vessels In The United States (Part I), Craig H. Allen

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In examining federalism issues relevant to merchant vessels, this article will distinguish between those laws and regulations governing liability for harm and those which regulate safety. Federalism questions arise most frequently in the former, private, maritime law domain, when courts are called upon to determine judicial jurisdiction and the extent to which state law may be applied to adjudicate liability and damages in cases falling within the admiralty and maritime jurisdiction. Less frequently, the federalism debate focuses on public maritime law, when states seek to regulate commercial vessel safety or vessel-source pollution.

This article will begin with an examination of …

Couriers Without Luggage: Negotiable Instruments And Digital Signatures, Jane Kaufman Winn

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Prior to the very recent explosion of interest in the Internet, for decades electronic commerce had been conducted on a large scale over closed networks. Since the late 1960s, billions of dollars in funds transfers have been executed over networked computer systems such as the Federal Reserve Wire Network (Fedwire), Clearing House Interbank Payment System (CHIPS), and the automated clearing house system (ACH); billions of dollars of goods have been sold over electronic data interchange networks. These closed, proprietary networks were built during the era of mainframe computer systems and are now being challenged by open networks of distributed client-server …

The Supreme Court, 1997 Term -- Leading Cases -- Federal Statutes And Regulations -- Americans With Disabilities Act -- Asymptomatic Hiv, Peter Nicolas

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The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz

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Make-Believe: The Rules Excluding Evidence Of Character And Liability Insurance (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law), Samuel R. Gross

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Article IV of the Federal Rules of Evidence includes several rules that prohibit the use of specified types of information as evidence of particular propositions. Subsequent remedial measures are inadmissible to prove negligence (but admissible to show ownership, control, et cetera),' settlement offers are inadmissible to prove liability (but admissible to show bias or prejudice, or for other purposes),2 and so forth. Any exclusion of relevant evidence involves some distortion of reality in the sense that the picture presented to the trier of fact includes less information than the available total. That will be true whether the evidence is kept …