Digital Commons Network^™

Beyond Judicial Minimalism, Cass R. Sunstein

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No abstract provided.

Mixed-Income Housing As A Pre-Commitment Strategy, Jeff Leslie

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Introduction, Cass R. Sunstein, David A. Weisbach

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No abstract provided.

The Social Costs Of Property Rights In Broadcast (And Cable) Signals, Shyam Balganesh

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Unratified Treaties, Domestic Politics, And The U.S. Constitution, Curtis A. Bradley

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Many commentators who favor expansions in international law also favor restrictions on executive authority. What these commentators often fail to recognize is the potential for conflict between these two commitments. In this Article, I consider one example of this potential conflict: the effect under international law of signed but unratified treaties.

Under contemporary treaty practice, a nation’s signature of a treaty, especially a multilateral treaty, typically does not make the nation a party to the treaty. Rather, nations become parties to treaties by an act of ratification or accession, either by depositing an instrument of ratification or accession with a …

What Good Is The Social Model Of Disability?, Adam M. Samaha

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A social model of disability relates a person's disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the model's force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by …

The Temporal Dimension Of Voting Rights, Adam B. Cox

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Looking Back To See The Future Of Punishment In America, Michael Tonry

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Lovers' Contracts In The Courts: Forsaking The Minimum Decencies, Judith T. Younger

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Law And Technology: Interactions And Relationships, Daniel J. Gifford

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The relations between law and technology are both simple and exceedingly complex. At the most elementary level, technology consists in the application of labor to create a product, to generate a service or otherwise to produce a desired result. Technology develops as ways are found to produce new results or to produce old results using fewer or less costly inputs. Law is generally understood to exist as a set of rules adopted by a society's governing institutions that are applicable to all of its inhabitants.' All modern societies have established institutions charged with making determinations about the applicability and interpretations …

Causes Of Popular Dissatisfaction With The Administration Of Justice In The Twenty-First Century, Robert Stein

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We are here today to celebrate and be challenged by a remarkable speech delivered by Dean Roscoe Pound on August 29, 1906. 1 We meet in the city where Dean Pound gave his historic address. On that occasion, Dean Pound was not Dean of the Harvard Law School, which he later became, but rather was the 36-year-old Dean of the University of Nebraska College of Law. 2 He was a well- educated man, having both a law degree from Northwestern University School of Law and a PhD in Botany from the University of Nebraska, 3 but he was not very …

Crime, Criminal Justice, And Criminology In The Netherlands, Michael Tonry, Catrien Bijleveld

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Determinants Of Penal Policies, Michael Tonry

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The Region And Taxation: School Finance, Cities, And The Hope For Regional Reform, Myron Orfield

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The Minnesota Fiscal Disparities Act Of 1971: The Twin Cities' Struggle And Blueprint For Regional Cooperation, Myron Orfield, Nicholas Wallace

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A Simple Statutory Solution To Minority Oppression In The Closely-Held Business, John H. Matheson, R. Kevin Maler

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Disputes involving closely held businesses come in primarily two varieties. When, as is often the case, the business fails, creditors bring lawsuits seeking to pierce the corporate veil in an attempt to reach the assets of the business owners. 3 When the business does well, on the other hand, minority owners often accuse those in control of seeking ways to keep a bigger slice of the profit pie and of squeezing or freezing out minority owners. 4 These latter disputes are often categorized under the rubric of minority shareholder oppression; and attempts to deal with them by statute and judicial …

Anti-Anti-Anti-Paternalism, Claire Hill

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Is government justified in being paternalistic? To some, the answer is yes - government sometimes knows better than people do what is best for them. If people are allowed unfettered free choice, they will not always be acting in their own best interests. Others, with a more libertarian bent, object that people know what is best for them and, in any event, should be able to do what they choose to do.

Perfectionist Policies In Family Law, Brian H. Bix

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Linda McClain's book, The Place of Families: Fostering Capacity, Equality, and Responsibility, offers a thoughtful approach to government policy in family matters, grounded on what McClain calls “toleration as respect,” in which the government has a role in improving individuals and social institutions, while valuing personal and collective self-government and making a range of choices available. McClain's approach combines elements of liberalism, feminism, and civic republicanism. In the context of considering McClain's proposals regarding marital equality, same-sex marriage, abortion, and sex education, this review essay considers the problem of persuasion and social reform. In a country where many voters and …

Domestic Agreements, Brian H. Bix

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In this Article I want to explore the treatment of certain domestic agreements in family law and to see what can be learned about law and families. It is a clich6, in discussions of family law and agreements, to point to Sir Henry Maine's famous quotation that society has moved "from Status to Contract."' I will not disappoint expectations here. The Maine quotation is usually offered ironically-and perhaps defiantly-in family law articles, as this is one area where status has stoutly, and largely successfully, resisted being overtaken by contract.

Methods Of The "War On Terror", David Weissbrodt, Amy Bergquist

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Many speakers in this Symposium have focused principally on "jus ad bellum," or the international law regulating the decision to resort to armed force. This Article concerns principally "jus in bello," that is, international humanitarian law or the limits on the methods of war. First, we will provide a brief discussion of the factual and legal setting of extraordinary rendition. Second, we will consider whether and how humanitarian law applies to the war on terror and related conflicts. Third, we will demonstrate how the prohibition of transferring civilians under Article 49 of the Fourth Geneva Convention applies to extraordinary rendition. …

Real Estate Practice In The Twenty-First Century, Ann Burkhart

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The next century will bring profound changes in real estate law and in the ways that it is practiced. This prediction may seem rather unremarkable for any area of law or for almost any other area of human endeavor. But the changes in real estate law will be exceptional because of their relative rapidity and comprehensiveness.

Unmitigated Punishment: Adolescent Criminal Responsibility And Lwop Sentences, Barry C. Feld

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For more than a century, youth crime policies have oscillated between periods of more lenient treatment and harsher punishment. Justice officials and the public alternatively attributed high crime rates either to ";soft"; rehabilitative policies and advocated ";tougher"; sanctions, or to excessively harsh penalties that failed adequately to treat youths. A century ago, Progressive reformers combined a more modern construction of childhood with a more scientific conception of social control to create a judicial-welfare alternative and to remove children from the adult criminal process. 2 They used juvenile courts to assimilate, ";Americanize,"; and control ";other people's"; children.

A Century Of Juvenile Justice: A Work In Progress Or A Revolution That Failed?, Barry C. Feld

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A century ago, Progressive reformers adopted a more modem construction of childhood as a developmental period of innocence, dependence, and vulnerability. They embraced a more scientific understanding of social control - positive criminology - and tried to identify the causes of crime and to treat, rather than to punish, offenders. Reformers combined the new vision of childhood with new insights into criminality to create a judicial-welfare alternative to the adult criminal process. Jurisdiction over dependent as well as delinquent children reflected juvenile courts' broader role as a child-saving welfare agency and not simply a "junior" criminal court.'

Laudatio: Pietro Trimarchi, Francesco Parisi

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No abstract provided.

The Formation Of International Treaties, Vincy Fon, Francesco Parisi

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The International Intellectual Property Roots Of Geographical Indications, Ruth Okediji

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Tax Lawyers Are People Too, Claire Hill

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When tax lawyers are shown to have been particularly "successful" in limiting or even eliminating their clients' tax liability, there is often an outcry, including for more law. But law's ability to deal with these problems is limited, for many reasons, including one less remarked upon than it should be: There is a continuum, from the "(Almost?) Over the Edge Envelope Pushing" tax lawyer to the "Old Venerable Risk-Hating" tax lawyer with, of course, most people falling somewhere along the continuum. Benefits to the "(Almost?) Over the Edge Envelope Pushing" lawyer might include living dangerously on the edge of detection, …

Punitive Damages And Valuing Harm, Alexandra B. Klass

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In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant's misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court's current framework …

The Perfect Storm Of Retirement Insecurity: Fixing The Three-Legged Stool Of Social Security, Pensions, And Personal Savings, Stephen F. Befort

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This article provides a wide-angle view of the looming crisis in retirement security. The impending confluence of a burgeoning retiree cohort and a diminishing resource base threatens to wreck havoc with the financial well-being of the coming generation of retirees. This article first reviews the current status of retirement security in the United States and finds that all three legs of the retirement stool - Social Security, pensions, and private savings - are projected to fall short of contributing adequate resources for future retirees. The article then turns toward a discussion of the possible responses for averting this potential crisis. …

Common Law And Federalism In The Age Of The Regulatory State, Alexandra B. Klass

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Over the past several decades, the growth of federal statutes and the rise of the regulatory state have weakened and displaced state common law even in the absence of express or implied preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the new federalism, such progressive common law development at the state level may be particularly timely and appropriate. This article uses …