Digital Commons Network^™

Transnationalizing Comparative Law, Ralf Michaels

Faculty Scholarship

Comparative law will not die in the 21st century, but nor can it remain unchanged. Comparative law as we have it today still retains its roots in 1900: it is focused on states, on positive law, and on a scientific approach. Comparative law in the age of transnationalism will have to transnationalize: it must move beyond the state, it must move beyond positive law, and it must endorse cultural approaches. We must retain our critique of legal nationalism, but we must add our critique of uncritical legal universalism.

Tributes To Kent Greenawalt, Barbara Aronstein Black, Vincent A. Blasi, Elizabeth F. Emens, H. Jefferson Powell, Susan P. Sturm, William F. Young

Faculty Scholarship

There are some tasks that present themselves as, at the same time, an opportunity and a challenge. Crafting a brief tribute to Kent Greenawalt is just such a task. It is first – and I should say foremost – an opportunity to express in a public forum one’s high regard for an esteemed colleague and valued friend, and, then, it is a challenge to do justice to his extraordinary accomplishments, to the man, and to his work.

In dedicating this issue to Kent, the Columbia Law Review honors one of its own, whose association with Columbia Law School and the …

Admin, Elizabeth F. Emens

Faculty Scholarship

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work – both managerial and secretarial – that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters. Both equity and efficiency are at stake here. Admin raises distributional concerns about those people – often women – who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home …

Possession As A Natural Right, Thomas W. Merrill

Faculty Scholarship

What follows is, I hope, a tribute both to Friedrich Hayek, for whom this lecture series is named, and Richard Epstein, who was kind enough to invite me to give the lecture. Hayek has long been an inspiration for his insights about the advantages of decentralized decision making and the importance of information in understanding design of institutions. Both are recurring themes in my own work. Richard was my teacher at the University of Chicago Law School and has been a guiding light ever since. His works on nuisance law, takings, and the public trust doctrine, among others, have had …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt

Faculty Scholarship

In this essay, I explore the place of a genealogy of morals within the context of a history of political economy. More specifically, I investigate the types of moralization – of criminals and delinquents, of the disorderly, but also of political economic systems, of workers and managers, of rules and rule-breaking – that are necessary and integral to making a population accept new styles of political and economic governance, especially the punitive institutions that accompany modern political economies in the contemporary period.

The marriage of political economy and a genealogy of morals: this essay explores how the moralization of certain …

Medical Evidence And Expertise In Abortion Jurisprudence, Aziza Ahmed

Faculty Scholarship

Medical literature on abortion largely supports pro-choice legal claims. In turn, progressive lawyers often call for “evidence-based approaches” to lawmaking on the assumption that it will produce pro-choice legal and regulatory outcomes. This article argues that the evidence-based approach is no longer a reliable or stable strategy for pro-choice lawyering given transformations in judicial treatment of medical knowledge and a shifting evidentiary base.

Drawing on landmark cases from 1973 to 2012, this article demonstrates how the Supreme Court and lower courts selectively utilize medical expertise and evidence to liberalize or constrain abortion access. With Roe v. Wade, 4 the Supreme …

Alice Corp. V. Cls Bank Int'l, Jordana Goodman

Faculty Scholarship

Congress has the power "to promote the Progress of Science and useful Arts."' Patent law subject matter eligibility under 35 U.S.C. section 101 creates a balance between incentivizing inventors to publicly disclose their knowledge and protecting the public from monopolies on ideas. Allowing inventors to monopolize the basic tools of scientific and technological work might "tend to impede innovation more than it would tend to promote it."² "Laws of nature, natural phenomena, and abstract ideas" constitute unpatentable subject matter under section 101.³ The section 101 inquiry serves as a threshold test to determine if the subject matter of …

Race In The Life Sciences: An Empirical Assessment, 1950 - 2000, Osagie K. Obasogie

Faculty Scholarship

The mainstream narrative regarding the evolution of race as an idea in the scientific community is that biological understandings of race dominated throughout the nineteenth and twentieth centuries up until World War II, after which a social constructionist approach is thought to have taken hold. Many believe that the horrific outcomes of the most notorious applications of biological race-eugenics and the Holocaust-moved scientists away from thinking that race reflects inherent differences and toward an understanding that race is a largely social, cultural, and political phenomenon. This understanding of the evolution of race as a scientific idea informed the way that …

Troubled Waters Diana Nyad And The Birth Of The Global Rules Of Marathon Swimming, Hadar Aviram

Faculty Scholarship

No abstract provided.

Mandating Discretion: Juvenile Sentencing Schemes After Miller V. Alabama, Jennifer S. Breen, John Mills

Faculty Scholarship

No abstract provided.

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia Gonzalez

Faculty Scholarship

For the last three decades scholars have explored the practice of restorative justice as a crime control mechanism in a multitude of settings. Much of the discourse has focused on restorative justice as an alternative to traditional punitive and retributive criminal justice processes. Whether restorative or punitive, criminal justice processes that seek to address harm are not apart, above, or outside social, cultural and political relations. This Article seeks to initiate a new dialogue of justice and argues that the ontology of restorative justice should to be viewed to include a liberatory moment of politicization focused on promoting equality and …

Framing A “Wicked” Debate: Subsistence, Nutrition, And Indigenous Rights Versus Deforestation, Air Pollution, And Climate Change, Cynthia Fowler

Faculty Scholarship

This presentation considers anthropogenic environmental change as a wicked problem in which multiple, divergent understandings of complex systems and changing conditions coexist. The stakes are high with this wicked problem for the whole Earth and all of humanity. Stakes are especially high in the tropical agropastoral communities whose resource management systems are the subject of much consternation and, at the same time, whose systems are incompletely known.

Windsor, Surrogacy, And Race, Khiara Bridges

Faculty Scholarship

Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court’s recent decision in United States v. Windsor. In …

Promoting Progress: A Qualitative Analysis Of Creative And Innovative Production, Jessica Silbey

Faculty Scholarship

This chapter is based on data collected as part of a larger qualitative empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. Broadly, the project involves the collecting and analysis of these interviews to understand how and why the interviewees create and innovate and to make sense of the intersection between intellectual property law and creative and innovative activity from the ground up. This chapter specifically investigates the concept of “progress” as discussed in the interviews. “Promoting progress” is the ostensible goal of the intellectual property protection in the United States, but what …

Protecting Consumers From Zombie-Debt Collectors, Neil L. Sobol

Faculty Scholarship

By obtaining judgments, or persuading consumers to pay a portion of these debts, acknowledge these debts, or enter into new agreements, collectors can resurrect and enforce dead or non-existent debts. The media has labeled these resurrected debts as "zombie debts." Just as the zombies in movies come back from the dead to terrorize individuals, dead debts may resurface to wreak havoc on consumers. Even if a consumer successfully defeats one zombie-debt collector, the process may restart if the debt is resold.

Legal scholarship has only begun to address zombie-debt issues, and has primarily focused on litigation. However, collectors are often …

The End Of Alzheimer's Disease - From Biochemical Pharmacology To Ecopsychosociology: A Personal Perspective, Peter J. Whitehouse

Faculty Scholarship

The future of the Alzheimer's disease (AD) field involves a more complete understanding not only the state of current scientific approaches, but also the linguistic and cultural context of preclinical and clinical research and policy activities. The challenges surrounding dementia are large and growing but are only part of broader social and health concerns. In this latter context, the current state of research in the AD area is reviewed together with necessary priorities in moving forward. Creating a more optimistic future will depend less on genetic and reductionist approaches and more on environmental and intergenerative approaches that will aid in …

Will There Be A Neurolaw Revolution?, Adam Kolber

Faculty Scholarship

No abstract provided.

Unexpected Links Between Baby Markets And Intergenerational Justice, Martha M. Ertman

Faculty Scholarship

Intergenerational justice does not require increased government regulation of reproductive technologies in the United States. Arguments tarring reproductive technologies as unnatural or immoral fail to withstand close scrutiny, and moreover ignore competing moral concerns like the liberty and equality of people to form families in different ways, as well as the interests of children born via assisted reproduction in having their families recognized just as coitally conceived children’s families are recognized. Embryo markets, in contrast, might present different challenges, requiring a separate analysis of their potential impact on intergenerational justice.

Swords, Shields, And Shackles: Human And Corporate "Persons" Under The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Linda E. Coco

Faculty Scholarship

No abstract provided.

Balancing Between Two Worlds: A Dakota Woman’S Reflections On Being A Law Professor, Angelique Eaglewoman

Faculty Scholarship

There were many paths I considered as a young woman and none of them included becoming a law professor. My journey to my present life as a Dakota woman law professor is about balancing between the worlds I travel back and forth in. There is my tribal world, where I feel replenished and part of an on-going community experience stretching back to time immemorial. I feel that I am part of an unfolding history of endurance, strong Native women, and a participant in sustaining our traditional Native ways. On the other hand, there is the non-Indian world, where I often …

Twenty-Five Years Of Law And Religion Scholarship: Some Reflections, Marie Failinger

Faculty Scholarship

In this address, the author describes some of the significant movements in law and religion scholarship over the past twenty-five years, including the dialogue between traditional church-state and international human rights scholars and outside scholars, including those writing from within American minority faith traditions.

Enduring Hierachies In American Legal Education, Olufunmilayo B. Arewa, Andrew P. Morriss, William D. Henderson

Faculty Scholarship

Although much attention has been paid to U.S. News & World Report's rankings of U.S. law schools, the hierarchy it describes is a long-standing one rather than a recent innovation. In this Article, we show the presence of a consistent hierarchy of U.S. law schools from the 1930s to the present, provide a categorization of law schools for use in research on trends in legal education, and examine the impact of U.S. News's introduction of a national, ordinal ranking on this established hierarchy. The Article examines the impact of such hierarchies for a range of decision making in law school …

Intellectual Property Geographies, Peter K. Yu

Faculty Scholarship

Written for a special issue on intellectual property and geography, this article outlines three sets of mismatches that demonstrate the vitality, utility and richness of analyzing intellectual property developments through a geographical lens. The article begins by examining economic geography, focusing on the tensions and conflicts between territorial borders and sub-national innovation (including those relating to obligations under the WTO TRIPS Agreement). This article then examines the oft-found mismatch between political geography and cultural geography. Illustrating this mismatch is the challenge of protecting traditional knowledge and traditional cultural expressions. The article concludes by exploring the growing mismatch between legal geography …

A Difficult Conversation: Corporate Directors On Race And Gender, Kimberly D. Krawiec, John M. Conley, Lissa L. Broome

Faculty Scholarship

This symposium essay summarizes our ongoing ethnographic research on corporate board diversity, discussing the central tension in our respondents’ views – their overwhelmingly enthusiastic support of board diversity coupled with an inability to articulate coherent accounts of board diversity benefits that might rationalize that enthusiasm. As their reactions make clear, frank dialogue about race and gender – even a seemingly benign discussion of diversity’s benefits – can be a difficult conversation.

What’S Love Got To Do With Lawyers? Thoughts On Relationality, Love, And Lawyers’ Work, Eli Wald, Russell G. Pearce

Faculty Scholarship

In a new and provocative book, Rob Vischer has challenged the neutral partisan conception of the lawyer and the legal profession’s reductive presumption that all clients wish to pursue atomistic self-interest irrespective of the consequences to others. Vischer’s use of the teachings of Martin Luther King, Jr. and of Christian theology as a foundation for an alternative, and richly relational, account of law practice is both inspiring and effective.

To debunk the presumption that clients seek narrow self-interest, which the book argues is a powerful component of the neutral partisan conception, Vischer compellingly asserts that clients are relational beings often …

Aall Diversity Redelineated, Ronald E. Wheeler

Faculty Scholarship

There are other types of diversity beyond race, ethnicity, and sexual orientation. Professor Wheeler explores various ways that law librarians experience different types of diversity in law librarianship. Through anecdotes, Wheeler demonstrates that in many ways all law librarians both contribute to and benefit from diversity in our profession.

The Dangerous Law Of Biological Race, Khiara Bridges

Faculty Scholarship

The idea of biological race -- a conception of race that postulates that racial groups are distinct, genetically homogenous units -- has experienced a dramatic resurgence in popularity in recent years. It is commonly understood, however, that the U.S. Supreme Court has rejected the idea that races are genetically uniform groupings of individuals. Almost a century ago, the Court famously appeared to recognize the socially constructed nature of race. Moreover, the jurisprudence since then appears to reaffirm this disbelief: within law, race is understood to be a social construction, having no biological truth to it at all. Yet upon closer …

Gauging The Gender Divide In The Middle East’S Educational System: Causes, Concerns, And The Impetus For Change, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Against Agnosticism: Why The Liberal State Isn't Just One (Authority) Among The Many, Linda C. Mcclain

Faculty Scholarship

This article takes up the gauntlet thrown down by Professor Abner Greene’s recent book, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy, to those scholars, politicians, and activists who believe that realizing the ideal of e pluribus unum (out of many, one) as well as constitutional principles of liberty and equality require a robust role for government. Government, Greene argues, is just one source of authority among many others, and citizens – or even public officials – have no general moral duty to obey the law. The political and constitutional order of the United States, he contends, …