Digital Commons Network^™

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Faculty Scholarship

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …

A Few Questions About The Social-Obligation Norm, Jedediah S. Purdy

Faculty Scholarship

I applaud Gregory Alexander for proposing an innovative view of property, one focused on the obligations of ownership. His project locates what I think of as the liberal aim of personal freedom (meaning both formal autonomy and real opportunity) within a social context of distributive choices and conceptions of mutual obligation. That is, he is asking what counts as a free society, and he is putting property regimes at the center of the answer. I want to set out some questions about where his project goes from here.

The Second Wave Of Comparative Law And Economics?, Ralf Michaels

Faculty Scholarship

Comment on a text by Gillian Hadfield, The Levers of Legal Design: Institutional Determinants of the Quality of Law, 36 Journal of Comparative Economics 43 (2008)

Global Legal Pluralism, Ralf Michaels

Faculty Scholarship

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines---comparative law, conflict of laws, public international law, and European Union law---have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism---the definition of law, the role of the …

After The Revolution – Decline And Return Of U.S. Conflicts Of Laws, Ralf Michaels

Faculty Scholarship

Scholars in the US have become uninterested in conflict of laws, at least in the core issues that spurred the conflict of laws revolution, especially questions of method and areas of tort and contract law. Proposals for a new (third) Restatement have not yet led very far. By contrast, new interest comes from the fringes: special political questions and interdisciplinarity. As to the first, I use the example of same‑sex marriages to discuss the extent to which discussions about politics are inseparably linked with discussions over conflict of laws. Conflict of laws is here not a mere additional field in …

The Nature Of Universal Moralities, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Website Proprietorship And Online Harassment, Nancy Kim

Faculty Scholarship

Although harassment and bullying have always existed, when such behavior is conducted online, the consequences can be uniquely devastating. The anonymity of harassers, the ease of widespread digital dissemination, and the inability to contain and/or eliminate online information can aggravate the nature of harassment on the Internet. Furthermore, section 230 of the Communications Decency Act provides Web site sponsors with immunity for content posted by others and no incentive to remove offending content.

Given the unique nature of online harassment, ex post punitive measures are inadequate to redress grievances. In this Article, I propose the imposition of proprietorship liability upon …

Trademark Intersectionality , Sonia K. Katyal

Faculty Scholarship

Even though most scholars and judges treat intellectual property law as a predominantly content neutral phenomenon, trademark law contains a statutory provision, Section 2(a) that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous,” a provision that has raised intrinsically powerful constitutional concerns. The constitutional tensions surrounding Section 2(a), invariably, affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only …

Dissident Citizen, The Symposium: Sexuality & Gender Law: Assessing The Field, Envisioning The Future, Sonia K. Katyal

Faculty Scholarship

We have arrived at a crossroads in terms of the intersection between law, sexuality, and globalization. Historically, and even today, the majority of accounts of GLBT migration tend to remain focused on “a narrative of movement from repression to freedom, or a heroic journey undertaken in search of liberation.” Within this narrative, the United States is usually cast as a land of opportunity and liberation, a place that represents freedom from discrimination and economic opportunity. But this narrative also elides the complexity that erupts from grappling with the reality that many other jurisdictions outside of the United States can be …

2009 Survey Of Books Related To Women And The Law: Review: Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In The U.S. Prison System, Giovanna Shay

Faculty Scholarship

The Author reviews journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) which presents an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars …

Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In The U.S. Prison System, Giovanna Shay

Faculty Scholarship

Journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) is an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars furthers the goal of …

A Few Questions About The Social-Obligation Norm, Jedediah Purdy

Faculty Scholarship

Reponse to an article by Gregory S. Alexander, 'The Social-obligation Norm in American Property Law,' in a Special Issue of the Journal on Property Obligation.

Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks

Faculty Scholarship

In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that …

Comparative Law By Numbers? Legal Origins Thesis, Doing Business Reports, And The Silence Of Traditional Comparative Law, Ralf Michaels

Faculty Scholarship

The legal origins thesis -- the thesis that legal origin impacts economic growth and the common law is better for economic growth than the civil law -- has created hundreds of papers and citation numbers unheard of among comparative lawyers. The Doing Business reports -- cross-country comparisons including rankings on the attractiveness of different legal systems for doing business -- have the highest circulation numbers of all World Bank Publications; even critics admit that they have been successful at inciting legal reform in many countries in the world. Yet, traditional comparative lawyers have all but ignored these developments.

The first …

The Practice Of Ethics, Jeremy Bendik-Keymer

Faculty Scholarship

The point of this talk is not to school you in the practice of ethics, but to raise questions about the practice of ethics. There is a standard picture of the practice of ethics that goes like this:

Ethical theory is done in a classroom. It is divided into normative theory, meta-ethics, and descriptive ethics. Students learn to see how the ethics in their society and community works; they learn how to discover true ethical beliefs and sometimes discover them during class. Through meta-ethics, they understand what it is to have an ethical belief. Then –and here comes the practice …

Not The City Of God: The Multiplicity Of Wrongs And Rules, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen

Faculty Scholarship

Introduction to an issue of the journal that brings together the papers presented, as revised by the participants, at a conference held at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany in the summer of 2007.

Virginity Testing And South Africa's Hiv/Aids Crisis: Beyond Rights Universalism And Cultural Relativism Toward Health Capabilities, Erika George

Faculty Scholarship

In this Article, I explore the tension between the politics of culture and the rights of women and girls to equality, privacy, and sexual autonomy in the context of epidemic disease. Specifically, this Article examines the political debate surrounding the resurgence of virginity testing, its widespread popular support in certain communities, and the South African government's recent efforts to prohibit the practice. This Article argues that the current debate over virginity testing, which focuses on abolition or accommodation of the practice, is misguided and polarizing. It argues that these perspectives on the debate increase the likelihood that the problem causing …

Examples Of The Political Character Of International Water Law, Gabriel E. Eckstein

Faculty Scholarship

It is widely known that over a billion people lack access to potable water, and well over twice that number are without adequate sanitation'-the latter situation often being related to the former. It has been calculated that every eight seconds a child dies of water-related causes-a stunning statistic and an absolutely unacceptable state of affairs.

While much has been made of the prospect of global water shortages, what is perhaps not so well known is that most of the world's fresh water is shared by two or more states. There are more than 260 international drainage basins, which account for …

Sovereignty As Discourse, Robert L. Tsai

Faculty Scholarship

This is a review of Howard Schweber's book, "The Language of Liberal Constitutionalism" (Cambridge University Press, 2007). Schweber argues that "the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and sufficient condition for constitution making." I critique the power and limits of this reformulated Lockean thesis, as well as Schweber's secondary claims that, for constitutional language to remain legitimate, it must increasingly become autonomous, specialized, and secular.

Property And Relative Status , Nestor M. Davidson

Faculty Scholarship

Property does many things-it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies. This status-signaling function of property-with property serving as an important locus for symbolic meaning through which people compare themselves to others-complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading …

How The Merits Matter: Directors' And Officers' Insurance And Securities Settlements, Tom Baker, Sean J. Griffith

Faculty Scholarship

This Article seeks what may be the holy grail of securities law scholarship—the role of the "merits" in securities class actions--by investigating the relationship between settlements and directors' and officers' (D&O) liability insurance. Drawing upon in-depth interviews with plaintiffs' and defense lawyers, D&O insurance claims managers, monitoring counsel, brokers, mediators, and testifying experts, we elucidate the key factors influencing settlement and examine the relationship between these factors and notions of merit in civil litigation. We find that, although securities settlements are influenced by some factors that are arguably merit related, such as the "sex appeal" of a claim's liability elements, …

Tribal Nation Economics: Rebuilding Commercial Prosperity In Spite Of U.S. Trade Restraints–Recommendations For Economic Revitalization In Indian Country, Angelique Eaglewoman

Faculty Scholarship

Tribal commerce created the current highways that stretch from coast-to-coast in North America today. The roads that are traveled by semi-trucks full of cargo, grocery produce, and all manner of commercial goods are on top of the ancient trade routes Natives have traveled for centuries. Unfortunately, the history and sophistication of Native commercial activities have been largely suppressed and left out of the story of the North American continent as Euro-Americans rewrote the continent’s history to reflect the glorification of colonization. The truth is that there was no need for the 'rugged pioneer' to cut through tall grass to head …

Disturbing Constructions Of Tropical Savannas And The People Who Burn Them, Cynthia Fowler

Faculty Scholarship

The transition from equilibrium to non-equilibrium models of ecosystems in the biological sciences during the past several decades parallels an evolution in the ways that anthropologists understand culture. Reconceptualizations of ecosystem processes (e.g., disturbance) and units (e.g., landscapes) are apparent in fire science where they have influenced a conversion from the belief that fire is a destructive artificial force to the belief that fire is a controllable natural element. What adjustments have fire scientists made in their understandings of people who ignite fires? Even though fire science literature is voluminous, the sociocultural and biophysical relationships surrounding fire are insufficiently understood. …

Repairing Family Law, Clare Huntington

Faculty Scholarship

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void — and inaugurate a larger debate about the central role of emotion in family law — by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and …

Shadow War Scholarship, Indigenous Legal Tradition, And Modern Law In Indian Country, Christine Zuni Cruz

Faculty Scholarship

This article documents the purposes and reasons for the development of the Tribal Law Journal, the University of New Mexico School of Laws electronic journal created to promote scholarship on tribal law and the Indigenous legal tradition. It discusses the use of the internet for the work of the journal and of the need to increase an understanding and awareness of the law of Indigenous peoples. The diversity of indigenous peoples, in and of itself, requires unique approaches to the discussion of tribal law. The article considers how the Zapatista Movement in Chiapas utilized the internet. The Zapatista's engagement of …

In Defense Of Property , Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Faculty Scholarship

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly …

Seeing And Believing: Mandatory Ultrasound And The Path To A Protected Choice, Carol Sanger

Faculty Scholarship

Several state legislatures now require that before a woman may consent to an abortion, she must first undergo an ultrasound and be offered the image of her fetus. The justification is that without an ultrasound, her consent will not be fully informed. Such legislation, the latest move in abortion regulation, supposes that a woman who sees the image will be less likely to abort. This Article explores how visual politics has combined with visual technology, and how law has seized upon both in a campaign to encourage women to choose against abortion. While rarely analyzed, the significance of seeing, or …

Longing For Loving, Katherine M. Franke

Faculty Scholarship

Our task in this Symposium is to place Loving v. Virginia in a contemporary context: to interpret, if not reinterpret, its meaning in light of the settings in which race, sexuality, and intimacy are being negotiated and renegotiated today. So we might ask, in what way are Mildred and Richard Loving role models for us today? How, if at all, does the legal movement for marriage equality for interracial couples help us think through our arguments and strategies as we struggle today for marriage equality for same-sex couples?

One way to frame these questions is to ask whether there is …

Social Reconstruction As A Local Process, Naomi Roht-Arriaza, Laura Arriaza

Faculty Scholarship

No abstract provided.