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A Good Country Gentlewoman: Catherine Clive's Epistolary Autobiography, Joallen Bradham
A Good Country Gentlewoman: Catherine Clive's Epistolary Autobiography, Joallen Bradham
Faculty Articles
Unable to play the gentlewoman on stage, Catherine Clive lived the part in retirement. Her letters document the days and ways of the gentlewoman, Clive's need to assume the role, and the actress's awareness that she performs. In all details, Clive's gentlewoman conforms to contemporary expectations of that figure.
An Attorney's Right To Retain Fees Derived From A Fraudulent Law Suit, Leonard Pertnoy
An Attorney's Right To Retain Fees Derived From A Fraudulent Law Suit, Leonard Pertnoy
Faculty Articles
The remedy of restitution, used to prevent unjust enrichment, is a fundamental right firmly entrenched in the common law. This is especially true in cases where a victim seeks equitable relief to require the return of money or property obtained as a result of fraud. However, should the defrauded person always be entitled to be made whole? Similarly, the remedy of forfeiture is also a deeply rooted legal concept, finding its beginnings in early English common law. Originally, forfeiture was a punishment annexed by law to some illegal act. However, the concept of deodand now not only includes forfeiture of …
Gendered Literacy In Black And White: Turn-Of-The-Century African-American And European-American Club Women's Printed Texts, Anne Ruggles Gere, Sarah R. Robbins
Gendered Literacy In Black And White: Turn-Of-The-Century African-American And European-American Club Women's Printed Texts, Anne Ruggles Gere, Sarah R. Robbins
Faculty Articles
At the turn of the century women across the United States had organized themselves into a variety of single-sex groups to effect social change. Yet most of the shared spaces of agency that women seemed to control were shaped-often, in fact, constrained-by forces beyond them, so that what looked like women-led initiatives functioned in a context where female agency was highly contested. The women's club movement created one such complex social space. Clubs flourished between 1880 and the mid-1920s, leading an estimated two million women from varying class, racial, and ethnic religious backgrounds to join organizations or self-improvement and social …
Privatized Regulation: Japanese Regulatory Style In Comparative And International Perspective, Frank K. Upham
Privatized Regulation: Japanese Regulatory Style In Comparative And International Perspective, Frank K. Upham
Faculty Articles
To begin the analysis of Japanese regulation, Part I looks closely at the structure and implementation of the Large Scale Retail Stores Law (“LSRSL”) by the Ministry of International Trade and Industry (“MITI”). The LSRSL and its implementation are representative of Japanese agency practice, and their detailed description can aid in forming preliminary generalizations about the legal nature and explanations for the delegation of power to private parties that this Article argues comprises Japanese regulatory style. To confirm the representative nature of administrative practice under the LSRSL and to provide additional breadth to the analysis, Part II looks at instances …
Whose Democratic Vision Of The Takings Clause? A Comment On Frank Michelman's Testimony On Senate Bill 605, Richard A. Epstein
Whose Democratic Vision Of The Takings Clause? A Comment On Frank Michelman's Testimony On Senate Bill 605, Richard A. Epstein
Faculty Articles
Frank Michelman's eloquent testimony before the Senate Committee on Environment and Public Works shows yet again the intrinsic fascination of the takings problem and its long-term hold on the legal imagination. Spurred on by his opposition to Senate Bill 605, Professor Michelman launched into a broader examination of the relationship of private property to the police power. In his view, Senate Bill 605 represents a form of "private-property absolutism" which is "contrary to historic American constitutional understanding; and without the absolutist premise to support them, 'property rights' laws themselves lack any robust public justification." My purpose here is not to …
The Subtle Vices Of The Employment Discrimination Laws, Richard A. Epstein
The Subtle Vices Of The Employment Discrimination Laws, Richard A. Epstein
Faculty Articles
The basic argument I have made in favor of discrimination in employment markets is: when large numbers of employers who are in competition with one another, society does not have to worry about the irrationality or stupidity of any individual employee or employer. Instead, society must ask itself how the least irrational employer would respond to the requests of workers in disfavored groups. The reason is clear enough. A majority vote is not required to get a job in an open market. People normally do not expect to find employment with employers who are hostile to their aims and ambitions. …
Fraud In The New-Issues Market: Empirical Evidence On Securities Class Actions, James Bohn, Stephen J. Choi
Fraud In The New-Issues Market: Empirical Evidence On Securities Class Actions, James Bohn, Stephen J. Choi
Faculty Articles
This Article seeks to extend the previous empirical shareholder litigation work and provide a broad-based examination of securities class actions in the new-issues market. Because we look at the entire sample of equity IPOs from 1975 to 1986, we avoid the small sample size problems of Alexander's study and the bias problems of. Drake and Vetsuypens's work. Importantly, unlike other previous empirical work, we focus not only on those firms that were sued but also on those firms that were not sued. In fact, 3396 IPOs in our sample of 3519 IPOs were not subjects of lawsuits. Through a comparison …
What's Left?: Hate Speech, Pornography, And The Problem For Artistic Expression, Amy M. Adler
What's Left?: Hate Speech, Pornography, And The Problem For Artistic Expression, Amy M. Adler
Faculty Articles
Some portion of the political left in the United States has called for the restriction of pornography and hate speech. Those who advocate such censorship do so on the ground that pornography and hate speech cause harm to disadvantaged "outsider" groups in society. For this reason, the leftist censorship advocates do not accept traditional First Amendment doctrines that protect much pornography and hate speech. In calling for censorship, the author argues, leftists endanger a great deal of activist speech, particularly in the form of artwork, that in fact seeks to undermine the very pornography and hate speech the censorship advocates …
A Paradigm For Determining The Role Of Counsel For Children, Martin Guggenheim
A Paradigm For Determining The Role Of Counsel For Children, Martin Guggenheim
Faculty Articles
The thesis of this Article is that we have skipped an important step, in that there is much work that still needs to be done to resolve the proper mode of analysis. This Article explores the relevant considerations and offers an analytic framework or paradigm for determining the role of counsel for "young children.", For these purposes, the term "young children" will be defined to mean children so young that they cannot articulate their preferences to counsel (e.g., newborns to children ages two or three) and children who, though old enough to communicate, would be considered to be "impaired," within …
The Dangerous Extraterritoriality Of American Securities Law, Stephen J. Choi, Andrew T. Guzman
The Dangerous Extraterritoriality Of American Securities Law, Stephen J. Choi, Andrew T. Guzman
Faculty Articles
The capital markets within the United States are among the larg- est in the world. Today, the combined volume of the New York Stock Exchange (NYSE), American Stock Exchange (AMEX) and Nasdaq market system reaches approximately $4 trillion dollars annually. With the size of the U.S. markets has come an understandable pride in the success of the American regulatory system. Possessing one of the most complex and intricate of regimes, the regulatory system in the United States, as administered and monitored by the Securities and Exchange Commission (SEC), is often praised. Not surprisingly, perhaps, the United States has frequently attempted …
The Destruction Of Social Capital Through Law, Richard H. Pildes
The Destruction Of Social Capital Through Law, Richard H. Pildes
Faculty Articles
The articles presented here portray several different conceptions of the relationship between the realm of formal state law and the realm of social norms-as well as various views on what economic analysis might contribute to our knowledge of that relationship. Robert Ellickson's pathbreaking work describes two parallel domains, largely segregated from and irrelevant to each other; the norms of Shasta County arise and are maintained not in the shadow of the law, but in ignorance of it. Robert Cooter offers a more normative and synthetic vision, but it is a synthesis in which state law should understand itself primarily as …
Regulatory Sins Versus Market Legacies: A Short Reply To Mr. Leech, Richard A. Epstein
Regulatory Sins Versus Market Legacies: A Short Reply To Mr. Leech, Richard A. Epstein
Faculty Articles
I think everything that Michael Leech has said, without exception, is dead wrong. Now, let me explain why. His first point is to indict American society as it operates today for its divisiveness, its decline in education and its overall stress and strain. Fair enough. However, nothing I have advocated has been the law of this country since 1965. Every one of the social ills that Mr. Leech referred to, from illegitimacy, to lack of education, to crime, to racial segregation, is higher and more pitched today than it was in 1965. To say that the current situation should be …
The Enforceability Of Norms And The Employment Relationship, Edward B. Rock, Michael L. Wachter
The Enforceability Of Norms And The Employment Relationship, Edward B. Rock, Michael L. Wachter
Faculty Articles
A fundamental question that emerges from this literature involves the relationship between norms and law. To put this question in its sharpest and most interesting form: Under what circumstances should courts enforce the norms of private parties? In Shasta County, where norms, not laws, apparently govern cattle trespass and fencing disputes among ranchers, should the courts enforce these norms? For Ellickson, the answer seems relatively clear: If one concludes that the norms of close-knit groups are generally efficient, then when a close-knit group acts in contexts in which it is unable to impose losses on members, a utilitarian judge should …
Source-Basis Taxation Of Derivative Financial Instruments: Some Unanswered Questions, H. David Rosenbloom
Source-Basis Taxation Of Derivative Financial Instruments: Some Unanswered Questions, H. David Rosenbloom
Faculty Articles
Derivative financial instruments are, for many persons, shrouded in mystery. Although news of such instruments frequently appears in the financial press, from the Nick Leeson affair to recent disputes involving Bankers Trust and Merrill Lynch, the features of these instruments are rarely described. Usually derivatives are characterized as complex or arcane, the characterization apparently serving to justify the failure to explain. The unfortunate effect, enhanced by oblique financial jargon, has been tall barriers to analysis of these common financial tools. It is not necessary to understand everything about derivative financial instruments to understand the tax issues that such instruments involve. …
Custody And Conduct: How The Law Fails Lesbian And Gay Parents And Their Children, Julie Shapiro
Custody And Conduct: How The Law Fails Lesbian And Gay Parents And Their Children, Julie Shapiro
Faculty Articles
When parents dispute child custody, courts determine their rights by using a "best interests of the child" analysis. In this context, courts consider a host of factors, including parental sexuality. When considering the suitability of custody for a lesbian or gay parents, most courts employ a nexus test - one that requires a showing of a nexus between parental sexuality and the well-being of the child. A smaller number continue to use a harsher test that disqualifies lesbian and gay parents under a per se rule. This article argues that closer examination reveals that even the apparently more liberal nexus …
Out Of Sight, Out Of Mind: Is Blind Faith In Incapacitation Justified, Catherine M. Sharkey
Out Of Sight, Out Of Mind: Is Blind Faith In Incapacitation Justified, Catherine M. Sharkey
Faculty Articles
Book review of Incapacitation: Penal Confinement and the Restraint of Crime, by Franklin E. Zimring and Gordon Hawkins, Oxford University Press, 1995.
The Remote Causes Of Affirmative Action, Or School Desegregation In Kansas City, Missouri, Richard A. Epstein
The Remote Causes Of Affirmative Action, Or School Desegregation In Kansas City, Missouri, Richard A. Epstein
Faculty Articles
Although the language of proximate cause might not capture all the truths about problems of causation, it does capture at least one. There comes a point at which it no longer makes sense to scour the world for remote antecedents of particular harms. The further back one goes, the less the map of causation will look like a river surging toward the sea, and the more it will resemble a delicate network of capillaries meandering toward a common destination, with no dominant beginning or end. Concentrating on the "proximate" identifies the events likely to have had the greatest impact. It …
The Year: 2075, The Product: Law, Stephen Gillers
The Year: 2075, The Product: Law, Stephen Gillers
Faculty Articles
This is an expanded version of remarks delivered by Professor Stephen Gillers, New York University School of Law, at Hofstra University Law School legal ethics conference, March 12, 1996.
Physician-Assisted Death: An Essay On Constitutional Rights And Remedies, Sylvia A. Law
Physician-Assisted Death: An Essay On Constitutional Rights And Remedies, Sylvia A. Law
Faculty Articles
This Article addresses two important issues of constitutional law. First, as a matter of substantive constitutional law, do statutes criminalizing assisted suicide violate the liberty or privacy rights of terminally ill people who seek physician assistance in hastening death? Second, if criminal laws against physician-assisted suicide violate the constitutional rights of some, but not all, of the people they affect, when and how should courts remedy this violation?
Federalism And Interstate Environmental Externalities, Richard L. Revesz
Federalism And Interstate Environmental Externalities, Richard L. Revesz
Faculty Articles
The central purpose of this Article, particularly in light of my prior work, is to refocus the attention of federal environmental regulation. Of the two most prominent reasons for vesting responsibility for environmental regulation at the federal level, the race-tothe- bottom rationale is analytically unsound, despite the fact that much of the legal regime is structured to redress this asserted evil. In contrast, the rationale for federal regulation premised on the problem of interstate externalities is analytically unimpeachable but has not been effectively redressed in the current pollution- control scheme. At a time when federal environmental regulation is under fierce …
America's Shifting Fascination With Comparative Corporate Governance, Edward B. Rock
America's Shifting Fascination With Comparative Corporate Governance, Edward B. Rock
Faculty Articles
In this Article, I want to focus on the specific emergence of the comparativist turn in American corporate law scholarship, to try to appraise the significance of the recent American fascination with German and Japanese corporate governance, and to consider what it tells us about the possible path dependance of corporate law scholarship. Before turning to the comparative scholarship, however, I will first try to put it into context by giving a quick and somewhat idiosyncratic overview of the modem history of corporate law scholarship in the United States.
The Takings Jurisprudence Of The Warren Court: A Constitutional Siesta, Richard A. Epstein
The Takings Jurisprudence Of The Warren Court: A Constitutional Siesta, Richard A. Epstein
Faculty Articles
It is instructive to seek some explanations for this high level of Warren Court quiescence on property rights issues when there was such a high degree of tumult in other areas of its work. The best explanations do not reflect ill upon the Warren Court. It is a commonplace observation, easily forgotten, that courts do not generate the controversies that come before them. While the power of certiorari gives the Supreme Court the power to pick its cases and to hone in on its issues, that power does not allow it to enter into areas where there are no existing …
Trade, Competition, And Intellectual Property–Trips And Its Antitrust Counterparts, Eleanor M. Fox
Trade, Competition, And Intellectual Property–Trips And Its Antitrust Counterparts, Eleanor M. Fox
Faculty Articles
This Article examines the Inteiface between TRIPS' protection of intellectual property rights and antitrust law, and the extent to which TRIPS invites a counterpart agreement that would Internationalize intellectual property antitrust rules. Professor Fox argues that TRIPS does not call for Internationalizing antitrust law, and that even developing countries, which might find a greater need for antitrust protection against abuse of dominance after TRIPS, might be better served by developing and enforcing a national antitrust law of their own. She argues that TRIPS does, however, contemplate some limits to antitrust, lest antitrust enforcement impair protections guaranteed by TRIPS. Professor Fox …
Legislative Findings And Judicial Signals: A Positive Political Reading Of United States V. Lopez, Barry Friedman
Legislative Findings And Judicial Signals: A Positive Political Reading Of United States V. Lopez, Barry Friedman
Faculty Articles
Discusses the implications of the ruling in the Supreme Court case `United States v. Alfonso Lopez Jr.' Comments on Professor Philip Fickey's examinations of the potential benefits and drawbacks of increased judicial reliance on legislative findings; Examinations of positive political theory; Discussion of similar cases.
Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffrey Fagan, Martin Guggenheim
Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffrey Fagan, Martin Guggenheim
Faculty Articles
A study was conducted to examine the validity of judicial predictions of dangerousness inherent in preventive detention of juvenile offenders. Data were drawn from juveniles remanded in custody under the preventive detention statute of the New York Family Court Act during 1981 and 1984 and subsequently released within hours of the detention order pursuant to an injunction obtained in a federal district court. It is argued that there are reasonable and constitutional arguments to incapacitate a presumptively innocent individual when it is certain that he or she is dangerous. However, it is demonstrated that whenever a significant number of persons …
Is Amendment 2 Really A Bill Of Attainder? Some Questions About Professor Amar's Analysis Of Romer, Roderick M. Hills Jr.
Is Amendment 2 Really A Bill Of Attainder? Some Questions About Professor Amar's Analysis Of Romer, Roderick M. Hills Jr.
Faculty Articles
In the following pages, I will first attempt to explain the scope and purposes underlying the Constitution's clauses forbidding bills of attainder. Then I will show that the distinction between "orientation" and "conduct" - or "status" and "conduct" - really has nothing whatsoever to do with this principle. Finally, I will try to show that, like respondent's brief, Romer depends crucially on the breadth of Amendment 2 - the wide category of antidiscrimination laws that Amendment 2 preempted. It is this breadth, and not any use of the term "orientation" that led the Court to invalidate Amendment 2.
Foreword: What's The Security Council For?, José E. Alvarez
Foreword: What's The Security Council For?, José E. Alvarez
Faculty Articles
The Security Council has long served as international law's Rorschach test. Operating at the crossroads of international law and international relations, the post-Cold War Security Council embodies both politics and norm-making capabilities. What scholars see when they examine the inkblot which is today's Council says a great deal about contemporary schools of thought. What scholars say the Council is for, also says quite a bit about what they think international lawyering (and international law) is all about. In the process, Council analysts reveal themselves as political "realists," legal "utopians," nationalists, cosmopolitans, institutionalists, humanists, environmentalists, socialists, Europhiles, "Third World" sympathizers, feminists …
Critical Theory And The North American Free Trade Agreement's Chapter Eleven, José E. Alvarez
Critical Theory And The North American Free Trade Agreement's Chapter Eleven, José E. Alvarez
Faculty Articles
The application of critical race insights to issues involving U.S. foreign relations is likely to benefit both international lawyers and traditional race critics, albeit for different reasons. In critical race theory, international lawyers will find liberation from the prevailing state-centric and positivist modes of analysis that now dominate our field. Traditional race critics, who have usually stopped at the water's edge, may discover that U.S. foreign policy decisions replicate some of the familiar patterns of many domestic U.S. laws. Race critics may find it illuminating that what the U.S. government does, by way of treaty, serves to entrench or even …
Are We That Far Gone?: Due Process And Secret Deportation Proceedings, Michael A. Scaperlanda
Are We That Far Gone?: Due Process And Secret Deportation Proceedings, Michael A. Scaperlanda
Faculty Articles
No abstract provided.
Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price
Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price
Faculty Articles
This Essay is divided into five Parts. Part I sets the stage for the historical debate by evaluating the text of the Qualifications Clauses as well as the limited evidence of what the Framers and the ratifiers thought about these provisions. Part II shows that many states, immediately after the federal Constitution was ratified, behaved as though the Qualifications Clauses did not prevent them from adding qualifications for congressional office-holding. Part III compares this early evidence of state behavior with a debate in Congress after the Civil War concerning the meaning of the Qualifications Clauses. Part IV returns to the …