Digital Commons Network^™

Unbending Gender: Why Work And Family Conflict And What To Do About It, Joan Williams, Jamie Boyle, Adrienne Davis, Martha Ertman, Nancy Polikoff, Katharine B. Silbaugh, Lucie White, Susan Carle, Leti Volpp

Faculty Scholarship

PROCEEDINGS PROFESSOR WILLIAMS: I am going to talk fast, and talk short as an introduction to this panel. First, just a very few words about the norm of parental care. The goal-my goal, anyway, in using the norm of parental care which, of course, started out really as the norm of mother care-is to try to use the momentum of domesticity to bend our current gender to use the norm of parental care as a way of democratizing access to domesticity, which has always been classbased.

Fine-Tuning Tasini: Privileges Of Electronic Distribution And Reproduction, Wendy J. Gordon

Faculty Scholarship

The United States Court of Appeals for the Second Circuit is arguably the soundest copyright court in the nation. In Tasini v. New York Times, it handled a challenge brought by a group of freelance writers against publishers and database proprietors. The controversy, now pending in the United States Supreme Court, has wide importance because it will determine what entitlements attach to a publisher who purchases a privilege to include a freelancer's story in the publisher's magazine or newspaper. Essentially, the issue is whether a publisher, who has not purchased the story's copyright and has not obtained an explicit …

Tobacco, The Food And Drug Administration, And Congress, Leonard H. Glantz, George J. Annas

Faculty Scholarship

Smoking has been the number-one target of public health professionals in the United States for more than a decade because it is the leading cause of premature death. Nonetheless, no unified public health strategy has been developed. In 1995, with the strong endorsement of President Bill Clinton and Vice President Al Gore, the commissioner of the Food and Drug Administration (FDA), Dr. David Kessler, announced that the agency had jurisdiction over tobacco and would regulate cigarettes as “drug-delivery devices. The tobacco companies objected and sued the FDA, arguing that Congress had not given the FDA jurisdiction over their product. The …

Rules For Research On Human Genetic Variation: Lessons From Iceland, George J. Annas

Faculty Scholarship

Research on genetic variation aims to understand how genes function and requires the comparison of DNA samples from groups of individuals to identify variations that might have importance for health or disease. This work is easier if the samples are linked to accurate medical records and genealogic information. Iceland has medical records for all its citizens going back to World War I and detailed genealogic information going back even further. Because Iceland's small population (270,000) has long been isolated and homogeneous, it is thought by many to be an ideal place to search for disease-related genes. Journalists have cavalierly labeled …

A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy

Faculty Scholarship

In recent years, two women stood convicted of highly publicized major crimes in Massachusetts. Katherine Ann Power ("Power") was a fugitive who committed felony-murder in 1970. She led a life on the run as a fugitive until 1993 when she revealed her true identity and surrendered to authorities to face the consequences of her crimes. Louise Woodward ("Woodward"), an au pair originally from England, gained notoriety on both sides of the Atlantic Ocean when she was convicted of killing the baby entrusted to her care. Both women captured the attention of the national media for months and reportedly had opportunities …

Protecting The Sacred Sites Of Indigenous People In U.S. Courts: Reconciling Native American Religion And The Right To Exclude, Kevin J. Worthen

Faculty Scholarship

The key to understanding current U. S. caselaw concerning the protection of Native American sacred sites is arguably found in the dissenting opinion of an eighteen-year old case involving not religious freedom, not sacred sites, and not cultural heritage - but the right of Indian tribes to impose severance taxes on non-tribal members who extract oil and gas from tribal lands. In Merrion v. Jicarilla Apache Tribe, Justice Stevens refused to join the majority’s conclusion that the inherent sovereignty of the Jicarilla Apache Tribe included the power to impose such a tax. In his view, a tribe’s authority to regulate …

The Domestic Fourth Amendment Rights Of Undocumented Immigrants: On Guitterez And The Tort Law/Immigration Law Parallel, Victor C. Romero

Faculty Scholarship

This Article is composed of three parts. Part I examines the problems raised by the Gutierrez I regime, including the collapse of the protective constitutional floor of immigrants' rights portended by that decision. Part II contends that the current plenary power approach to immigration and immigrants' rights issues would likely support, rather than dismantle, the Gutierrez I approach to undocumented immigrants' Fourth Amendment rights. Part III provides an alternative to the plenary power regime by drawing a parallel between domestic tort law for premises liability and immigrants' rights law. This part concludes by showing that Rowland and its progeny could …

Aren't You Latino: Building Bridges Upon Common Misperceptions, Victor C. Romero

Faculty Scholarship

This article addresses minority on minority oppression and itragroup animosity. The author discusses ways in which communities of color can use common misperceptions to their advantage as a bridge to building a larger community.

The Limits Of Behavioral Theories Of Law And Social Norms, Robert E. Scott

Faculty Scholarship

The law influences the behavior of its citizens in various ways. Well understood are the direct effects of legal rules. By imposing sanctions or granting subsidies, the law either expands or contracts the horizon of opportunities within which individuals can satisfy their preferences. In this way, society can give incentives for desirable behavior. The direct effects of legal rules on individual behavior have been a fruitful source of inquiry for analysts using the techniques of law and economics. Modeling the incentive effects of legal rules provides a useful predictive tool for positive theory and normative critique. Indeed, the tools of …

Ratcheting Labor Standards: Regulation For Continuous Improvement In The Global Workplace, Charles F. Sabel, Dara O'Rourke, Archon Fung

Faculty Scholarship

It is a brute fact of contemporary globalization – unmistakable as activists and journalists catalog scandal after scandal – that the very transformations making possible higher quality, cheaper products often lead to unacceptable conditions of work: brutal use of child labor, dangerous environments, punishingly long days, starvation wages, discrimination, suppression of expression and association. In all quarters, the question is not whether to address these conditions, but how.

That question, however, admits no easy answers. Globalization itself has freed capital from many of its former constraints – national workplace standards, collective bargaining, and supervisory state agencies and courts – designed …

Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer

Faculty Scholarship

Options are granted to executives to inspire better performance by tying pay to the employer's stock price. Yet this incentive rationale no longer holds if executives can use the derivatives market to simulate a sale of their options, a practice known as hedging. This Article evaluates the effectiveness of existing legal constraints on hedging by executives, including limits derived from contract, securities and tax law. Although investment bankers have been searching for ways around these constraints, the bottom line is that, at least for now, executives are unable to hedge option grants: While contractual limits are rare, the securities law …

On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz

Faculty Scholarship

As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method – the free-form, oral interview conducted personally by the principal researcher – …

In Search Of Best Efforts: Reinterpreting Bloor V. Falstaff, Victor P. Goldberg

Faculty Scholarship

When contracting parties cannot quite define their obligations, they often resort to placeholder language, like "best efforts." They (and their counsel) likely have little idea of what they might mean, but, so long as they avoid litigation, it will not matter much. But "best efforts" clauses are on occasion litigated, and courts must read content into them. In Bloor v. Falstaff, a casebook favorite, the court held that Falstaff s lackluster promotional efforts for Ballantine beer violated its best efforts covenant. So far as I can tell, no commentators have questioned this outcome. Indeed, some commentators have found Falstaff …

Herbert Wechsler And The Criminal Law: A Brief Tribute, Harold Edgar

Faculty Scholarship

The great English architect Christopher Wren is buried in his most famous church, St. Paul's London. The inscription on his memorial stone concludes with the words: Lector, si monumentum requiris, circumspice. Reader, if you seek his monument, look around you.

That instruction serves well those who would appraise and honor Herbert Wechsler's contributions to American criminal law. When he joined the Columbia Law School faculty in 1933, this school did not teach criminal law and much of the profession thought the topic was not worth studying.' What fabulous good fortune it was that Herb thought otherwise. Throughout a long and …

Sticks And Snakes: Derivatives And Curtailing Aggressive Tax Planning, David M. Schizer

Faculty Scholarship

The most important tax problem of recent months is the impact of aggressive tax planning on corporate tax revenue. The Secretary of the Treasury blames the "tax shelter industry," in which tax lawyers and investment bankers develop and market tax-motivated transactions. This Article analyzes aggressive tax planning, and recommends ways to impede it, in a context rife with opportunities for planning: the tax rules for complex financial instruments known as derivatives. While planning opportunities are prevalent elsewhere in the tax law as well, this Article focuses on derivatives because the problem is particularly acute – indeed, derivatives have been called …

Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman

Faculty Scholarship

The Independent Counsel (IC) statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr.

Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end, bringing criminal charges against people believed to have information …

The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann

Faculty Scholarship

Common justifications for the use of the letter of credit fail to explain its widespread use. The classic explanation claims that the letter of credit provides an effective assurance of payment from a financially responsible third party. In that story, the seller – a Taiwanese clothing manufacturer, for example – fears that the overseas buyer – Wal-Mart – will refuse to pay once the goods have been shipped. Cross-border transactions magnify the concern, because the difficulties of litigating in a distant forum will hinder the manufacturer's efforts to force the distant buyer to pay. The manufacturer-seller solves that problem by …

Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies

Faculty Scholarship

Patterns of "stop and frisk" activity by police across New York City neighborhoods reflect competing theories of aggressive policing. "Broken Windows" theory suggest that neighborhoods with greater concentration of physical and social disorder should evidence higher stop and frisk activity, especially for "quality of life" crimes. However, although disorder theory informs quality of life policing strategies, patterns of stop and frisk activity suggest that neighborhood characteristics such as racial composition, poverty levels, and extent of social disorganization are stronger predictors of race- and crime-specific stops. Accordingly, neighborhood "street stop" activity reflects competing assumptions and meanings of policing strategy. Furthermore, looking …

Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors …

The Case For Formalism In Relational Contract, Robert E. Scott

Faculty Scholarship

The distinguished scholars who gathered last year to honor Ian Macneil and to reflect on his contributions to the understanding of contract and contract law represent diverse methodologies, and they approach the vexing problems raised by relational contracts from different normative perspectives. But on one point, I daresay, they all agree: the central task in developing a plausible normative theory of contract law is to specify the appropriate role of the state in regulating incomplete contracts. Complete contracts (to the extent that they exist in the real world) are rarely, if ever, breached since by definition the payoffs for every …

The Nature And Function Of Criminal Theory, George P. Fletcher

Faculty Scholarship

The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment; the theory of justification and of excuse, that is, of wrongdoing and responsibility; the relevance of consequences to the gravity of offenses (the problem of moral luck); and the …

Copyright Use And Excuse On The Internet, Jane C. Ginsburg

Faculty Scholarship

1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" [hereafter "DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace.

In titling this Article "Copyright Use and …

Lawyer Role, Agency Law, And The Characterization Officer Of The Court , James A. Cohen

Faculty Scholarship

The law of agency has governed American lawyers since before the Revolution, but recent scholarship about legal ethics and professional role almost entirely ignores it. Most commentators would concede that attorneys are agents, but would quickly add that the lawyer is also an "officer of the court" who has obligations to seek justice. However, analysis of the phrase "officer of the court" reveals that it has surprisingly little content; it is mostly rhetoric, caused by self-love and self-promotion. What little content it has points to a role of the attorney as agent whose obligations to the court are almost identical …

Review Of Commodity And Propriety: Competing Visions Of Property In American Legal Thought, 1776-1970, By Gregory S. Alexander, James L. Kainen

Faculty Scholarship

No abstract provided.

The Destructive Role Of Land Use Planning, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

Is land use planning fundamentally different from other forms of central planning? If so, does that difference suggest that land use planning will succeed where other forms of central planning failed? We conclude that land use planning is not fundamentally different from other forms of economic central planning. Further, the working of the market economy, and the long-term success of America's economy, is intertwined in the clear and certain rights and responsibilities generated by the common law of property. The complexity of the modem world does not diminish the need for private property; indeed, it strengthens its imperative. Returning to …

Pragmatic Conceptualism, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Redistricting In North Carolina-A Personal Perspective, Robinson O. Everett

Faculty Scholarship

In 1992, when I filed a lawsuit attacking North Carolina's recently enacted congressional redistricting plan, my premise was that drawing a plan for a racially defined purpose violates equal protection and for this reason and others is unconstitutional. Having now argued four appeals before the Supreme Court concerning North Carolina's redistricting, I still believe in the correctness of my origial premise; but, in addition, I am concerned that districts drawn with a predominantly racial purpose tend to polarize our society, discourage the formation of multiracial coalitions, and, in the long run, to harm even those they are intended to protect. …

Hercules, Herbert, And Amar: The Trouble With Intratextualism, Ernest A. Young, Adrian Vermeule

Faculty Scholarship

Commentary on, Akhil Reed Amar, Intratextualism, 112 Harvard Law Review 747 (1999).

Clear Consensus, Ambiguous Commitment, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.