Digital Commons Network^™

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller

Faculty Scholarship

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …

Foreign Law And The Denominator Problem, Ernest A. Young

Faculty Scholarship

No abstract provided.

Common-Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly D. Krawiec, Kathryn Zeiler

Faculty Scholarship

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of …

Colored Speech: Cross Burnings, Epistemics, And The Triumph Of The Crits?, Guy-Uriel Charles

Faculty Scholarship

This Essay examines the Court's recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court's conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas's active participation as a matter of epistemic authority and epistemic deference.

Reform Of Imf Conditionality - A Proposal For Self-Imposed Conditionality, Ofer Eldar

Faculty Scholarship

The IMF has faced criticism of its expansive use of conditionality. The paper proposes a new procedure for IMF lending designed to meet these criticisms by arguing for the legalization and formalization of the procedure for IMF lending in the light of legal concepts derived mainly from national administrative laws. The gist of the procedure is that, rather than have the IMF determine loan conditions following informal negotiations with member countries, countries seeking Fund assistance will design the conditions themselves. The IMF will have specified powers under which to review these conditions. Apart from other procedural requirements, conditions will have …

A Brief History Of Bioperl, Colin Crossman, Arti K. Rai

Faculty Scholarship

Large-scale open-source projects face a litany of pitfalls and difficulties. Problems of contribution quality, credit for contributions, project coordination, funding, and mission-creep are ever-present. Of these, long-term funding and project coordination can interact to form a particularly difficult problem for open-source projects in an academic environment.

BioPerl was chosen as an example of a successful academic open-source project. Several of the roadblocks and hurdles encountered and overcome in the development of BioPerl are examined through the telling of the history of the project. Along the way, key points of open-source law are explained, such as license choice and copyright.

The …

Congressional Authorization And The War On Terrorism, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the …

Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. (“Now What?”), William W. Van Alstyne

Faculty Scholarship

This article explores the variety of opinions expressed by the Justices in the two “Ten Commandments” cases, specifically Justice O’Connor’s dissent and Justice Breyer’s concurrence in Van Orden v. Perry.

Statutory Interpretation And The Intentional(Ist) Stance, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Lost In Translation: Social Choice Theory Is Misapplied Against Legislative Intent, Arthur Lupia, Mathew D. Mccubbins

Faculty Scholarship

Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Arrow's famous General Possibility Theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as "legislators are omniscient" and "legislators have infinite resources for changing law …

What Is New In The New Statutory Interpretation? Introduction To The Journal Of Contemporary Legal Issues Symposium, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

No abstract provided.

Paying For Politics, John M. De Figueiredo, Elizabeth Garrett

Faculty Scholarship

No abstract provided.

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

The Simplification Of International Data Privacy Rules, Joel R. Reidenberg

Faculty Scholarship

The variation and complexity of national data privacy rules pose significant challenges for international data flows. Data protection laws range from ad hoc narrow legal rights, like those found in the United States, to comprehensive fair information practice statutes like those found in Europe. Because data processing frequently occurs across national borders, multiple data protection laws might apply simultaneously to international data flows. At the same time, data protection regimes may prohibit the circumvention of national standards by processing personal information at a foreign site. Global information processing thus presents a data controller with important burdens and obstacles related to …

Criminal Law In A Post-Freudian World, Deborah W. Denno

Faculty Scholarship

Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code's mens rea provisions and defenses, which were developed in the 1950s and 1960s, a time of Freudian reign in the United States. For contemporary criminal law, however, this degree of psychoanalytic presence is troublesome. Freudian theory is difficult to apply to group conflicts and legal situations, and the theory emphasizes unconscious (rather than conscious) thoughts. The rising new science of …

Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear

Faculty Scholarship

Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive …

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan

Faculty Scholarship

This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …

Judicial Federalism In The Ecj's Berlusconi Case: Toward More Credible Corporate Governance And Financial Reporting Recent Development, Martin Gelter, Mathias M. Siems

Faculty Scholarship

In recent years, the general public in many countries has become increasingly aware of issues concerning business accounting and financial reporting. Americans hardly need to be reminded of the Enron debacle, where members of the company's senior management engaged in fraudulent off-balance sheet transactions to disguise the true state of the company's financial condition, a scheme that auditors failed to uncover until the company's implosion. This and other major corporate governance cases involving questionable or fraudulent accounting practices led to the Sarbanes-Oxley Act of 2002. This law was an unprecedented Congressional intervention into corporate governance, an arena that had previously …

Law, Lawyers, And Labor: The United Farm Workers' Legal Strategy In The 1960s And 1970s And The Role Of Law In Union Organizing Today , Jennifer Gordon

Faculty Scholarship

What does law offer labor? It depends. The specifics of the law in question are critical, as are the make-up and funding of the agency that is charged with implementing it and the economic strength, political clout, and strategic creativity of the unions and employers that it governs. Today's discussions of the NLRA from the union perspective are tinged with desperation about what law does for and to organizing-a desperation that is born of labor's sense that it has lost too many important battles before the NLRB and the courts over the interpretation of the NLRA. In despair, however, workers …

Religious Lawyering's Second Wave, Russell G. Pearce, Amelia J. Uelmen

Faculty Scholarship

Since the mid-1990s, the "religious lawyering movement" has expanded dramatically, receiving greater attention within the academy and the bar. As the movement enters what we term its "second wave" of development, this essay begins with a look back to its "first wave" of path-breaking scholarship and its gradual shift toward more institutionalized structures and programs. It argues that the predominant characteristic of first-wave religious lawyering scholarship was to claim a space within the professional conversation for lawyers to bring religious values to bear on their work. The essay then predicts that in the second wave religious lawyering conversations and scholarship …

Religious Lawyering Critique, The Aals Presentations, Bruce A. Green

Faculty Scholarship

One might think about the relationship between law practice and religion in different ways, depending on how one views either the professional norms or religious belief and observance. Some of the most recent academic literature on "religious lawyering" is premised on a highly critical view of the profession's norms and a claim that religious convictions that bear on the practice of law are incompatible with, and preferable to, aspects of the professional norms. My purpose here is to identify, and raise some questions about, both this critique and this suggestion, and to show how they are in tension with other …

Constitutional Right Against Excessive Punishment, The, Youngjae Lee

Faculty Scholarship

When is a death sentence, a sentence of imprisonment, or a fine so "excessive" or "disproportionate" in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court's own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court's answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning …

Technology And Internet Jurisdiction, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

Tax Shelters And The Search For The Silver Bullet, Lawrence A. Zelenak, Marvin Chirelstein

Faculty Scholarship

This article describes the ongoing legislative and administrative efforts to curtail tax shelters. It concludes that these efforts, which rely largely on disclosure requirements and penalties, cannot succeed as long as taxpayers continue to win many of the litigated shelter cases. It also concludes that the recent proposal of the Joint Committee on Taxation, to codify the economic substance doctrine, is unlikely to solve the problem. Although the proposal would have the salutary effect of preventing courts from deciding that the economic substance doctrine does not exist, courts would remain free to conclude that the doctrine is not applicable in …

Rights, Performatives, And Promises In Karl Olivecrona’S Legal Theory, Martin P. Golding

Faculty Scholarship

Karl Olivecrona (1971) maintains that "right" is a "hollow word," and so also for some other legal terms. "Right," he says, "has no conceptual background." He arrives at this position after an examination of metaphysical and naturalistic accounts, including American legal realism. Some of Olivecrona's arguments will be evaluated here. His position is influenced by Hagerstrom's theory of legal language, but he argues that Hagerstrom fails to account for how such terms as "right," "duty," etc. function in legal discourse and why they are useful. A parallel approach is also found in Olivecrona's book The Problem of the Monetary Unit …

The Limits Of Lawyering: Legal Opinions In Structured Finance, Steven L. Schwarcz

Faculty Scholarship

Significant controversy surrounds the issuance of legal opinions in structured finance transactions, particularly where accountants separately use these opinions, beyond their traditional primary use, for determining whether to characterize the transactions as debt. Reflecting at its core the unresolved boundaries between public and private in financial transactions, this controversy raises important issues of first impression: To what extent, for example, should lawyers be able to issue legal opinions that create negative externalities? Furthermore, what should differentiate the roles of lawyers and accountants in disclosing information to investors? Resolution of these issues not only helps to demystify the mystique, and untangle …

Proprietary Rights And Collective Action: The Case Of Biotechnology Research With Low Commercial Value, Arti K. Rai

Faculty Scholarship

No abstract provided.