Digital Commons Network^™

The Limits Of Borders: A Moderate Proposal For Immigration Reform, Frank H. Wu

Faculty Scholarship

No abstract provided.

Beyond The Model Minority Myth: Why Asian Americans Support Affirmative Action, Frank H. Wu, Theodore Hsien Wang

Faculty Scholarship

No abstract provided.

A Model Water Transfer Act For California, Brian E. Gray

Faculty Scholarship

No abstract provided.

Three-Branch Monte, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Takings And Progressive Rate Taxation, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Physicians Seeking Indemnification From Managed Care Organizations Transforming Equities And Remedies, Lois Wolf Schwartz, Lawrence I. Schwartz, Jeffrey Cambra

Faculty Scholarship

No abstract provided.

The Evolution Of Race In The Law The Supreme Court Moves From Approving Internment Of Japanese Americans To Disapproving Affirmative Action For African Americans, Frank H. Wu, Reggie Oh

Faculty Scholarship

No abstract provided.

Beyond Self–Interest: Asian Pacific Americans Toward A Community Of Justice, Frank H. Wu

Faculty Scholarship

No abstract provided.

Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffery Fagan, Martin Guggenheim

Faculty Scholarship

Since 1970, legislatures have increasingly relied on preventive detention – detention before trial ordered solely to prevent an accused from committing crime during the pretrial period – as an instrument of social control. Prior to this period, detention before trial was usually ordered only to assure an accused's presence at trial or to ensure the integrity of the trial process by preventing an accused from tampering with witnesses. Today, the majority of states and the federal system have changed their laws to allow judges to detain arrestees who pose a risk to society if released during the pretrial period. Half …

Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt

Faculty Scholarship

Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.

Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme …

Domination In Wrongdoing, George P. Fletcher

Faculty Scholarship

Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs. Both crimes and torts claim victims, however, the victims' responses vary according to context. In criminal cases, the victim responds by hoping that the government will apprehend and successfully prosecute the offender. In tort disputes, the victim responds by demanding compensation.

It is unclear, however, what constitutes wrongdoing. Defining wrongdoing as the violation of rights is unhelpful, for that definition only raises other questions: Who has rights and what is their content? Therefore, to understand the nature of wrongdoing, we should seek a substantive theory …

The Sovereign Immunity Exception Comment, Henry Paul Monaghan

Faculty Scholarship

Seminole Tribe v. Florida is the 1995 Term's illustration of the importance that a narrow, but solid, five-Justice majority of the Supreme Court attaches to the constitutional underpinnings of "Our Federalism." In Seminole Tribe, this majority declared that Congress lacks authority under its Article I, Section 8 regulatory powers to subject unconsenting states to suits initiated in federal court by private persons. The very same majority had previously made clear its intention to implement the original constitutional understanding of a national government of limited powers, especially when the national government attempted to "commandeer" state legislative and administrative processes. This …

Comparative Risk Assessment In New York, Michael B. Gerrard, Deborah Goldberg

Faculty Scholarship

Comparative risk assessment (CRA) is the examination of the relative risks posed by different dangers, with a view to deciding which dangers deserve the most governmental attention. CRA frequently tries to reduce different problems to a common metric, usually the statistical lives saved by a program, so that apples can be weighed against oranges. This article will discuss and assess the growing use of CRA in New York State.

There are two principal arguments for the use of CRA in the environmental context. The first is that we do not have unlimited resources; we cannot move against all problems simultaneously. …

Domination In The Theory Of Justification And Excuse, George P. Fletcher

Faculty Scholarship

The major currents driving legal theory have largely bypassed the field of criminal law. Neither the economists nor the advocates of critical legal studies ("crits") have had much to say about the theory of criminal responsibility or the proper mode of trying suspects. The economists have fallen flat in applying their rationalist models to the problems of punishing wrongdoers. The "crits" have had little to add-beyond Mark Kelman's one original and provocative article.

Of all the schools on the march in the law schools today, the feminists have had the most to say about the failings of the criminal law. …

U. S. Federalism And Intellectual Property, Jane C. Ginsburg

Faculty Scholarship

The federal structure of the U.S. government presents interesting questions for intellectual property. Which government, national or state, exercises regulatory authority? Or do both governments play a significant role? Questions of this order cannot be addressed unless one first analyzes what the term "intellectual property" comprehends. Intellectual property includes well-recognized regimes of exclusive rights in inventions (patents), literary, artistic and musical creations (copyrights), and trademarks. But it also covers more elusive, and evolving, interests, such as exploitation of one's personal name and image (right of publicity), trade secrets, and a generalized concern with prevention of acts amounting to unlicensed appropriation …

The Legal Structure Of The Chinese Socialist Market Enterprise, William H. Simon

Faculty Scholarship

China's phenomenal economic growth since 1978 has been accompanied by a cascade of institutional innovation and experimentation. In at least this one sense a hundred flowers are blooming in the People's Republic. The range of institutional forms and their defiance of the conventions of economic organization in both capitalist and socialist societies are impressive.

The Chinese leadership calls the new order by the unfamiliar (and to some, oxymoronic) term "socialist market" economy. Its "market" dimensions include deregulation of most prices, decentralization of decision-making to the household in agriculture and to the enterprise in industry, incentive schemes for peasants, managers, and …

The Future Of The Private Securities Litigation Reform Act: Or, Why The Fat Lady Has Not Yet Sung, John C. Coffee Jr.

Faculty Scholarship

Much commentary about securities litigation shares the implicit premise that the Private Securities Litigation Reform Act of 1995 (Reform Act) is, for better or worse, a fait accompli – that is, legislation whose meaning is fixed and whose impact, while still debatable, is not contingent on future events. This Article sees it differently: the Reform Act is more like wet clay that has been shaped into an approximation of a human form by an apprentice craftsmen and has now been turned over to the master sculptor for the details that will spell the difference between high art and merely competent …

How Can We Sleep While The Beds Are Burning? The Tumultuous Prison Culture Of Attica Flourishes In American Prisons Twenty-Five Years Later, Justin P. Brooks

Faculty Scholarship

No abstract provided.

The Client Fraud Problem A Justinian Quartet, Geoffrey C. Hazard, Jr.

Faculty Scholarship

No abstract provided.

A Lawyer's Guide To Modern Valuation Techniques In Mergers And Acquisitions, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

“And To The Republic For Which It Stands”: Guaranteeing A Republican Form Of Government, Catherine A. Rogers, David L. Faigman

Faculty Scholarship

Most scholars who have addressed voter initiatives suggest only that the Guarantee Clause requires that the Supreme Court take a more active role in reviewing the constitutionality of state initiative measures. In contrast, we argue in this Essay that the Guarantee Clause establishes a per se prohibition against state initiatives. Part I of this Essay briefly examines the historical origins of the Guarantee Clause and the Founders’ apprehensions of direct democracy. Part II observes how modern state initiatives provide contemporary illustrations of the Founders’ philosophical concerns about direct democracy. Part III concludes that state initiative measures constitute per se violations …

Welfare Reform And Child Care: A Proposal For State Legislation, Clare Huntington

Faculty Scholarship

Without subsidized child care, Dianne Williams, the mother of an eighteen-month-old son, would never have left welfare and earned the post-secondary degree that led to her current job as a senior secretary; Tammy Stinson, a U.S. Air Force veteran and 29-year-old mother of two children, would spend up to $150 of her weekly $200 salary on child care, increasing the likelihood she would turn to welfare or live in poverty; Jerry Andrews, a graduate of a government-funded early childhood education program, might not earn $31,200 a year and be working towards an engineering degree. These individuals are lucky. The vast …

Are The Antitrust Agencies Overregulating Physician Networks?, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

Melancholy Reunion: A Report From The Future On The Collapse Of Civil-Military Relations In The United States, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Racist Health Care?, Barbara A. Noah

Faculty Scholarship

During the past few years, rationing has become an explicit feature in decisions concerning optimal delivery of health care services, and it poses difficult choices for health care providers and policymakers. Insurers and patients increasingly must balance the desire for access to every possible treatment against concerns about affordability. Costdriven treatment decisions are becoming an unavoidable reality for most patients. Apparently, however, another more pernicious type of rationing occurs in this country. It does not depend on factors such as the likelihood of an optimal outcome, the comparative efficacy of different available treatment modalities, or even the ability to pay …

Blending As A Central Process Of Grammar, Mark Bernard Turner

Faculty Scholarship

Constructions are long-term memory associations of form and meaning. How are they formed and learned, how do they change, and how do they combine into new utterances (constructs, communicative performances) in working memory? This chapter analyzes the role and process of conceptual integration (blending) in the creation and use of constructions.

"Weightier Than A Mountain": Duty, Hierarchy, And The Consumer In Japan, Anita Bernstein, Paul Fleming

Faculty Scholarship

No abstract provided.

Copyright: From Stone Age Caves To The Celestial Jukebox, Nick Allard

Faculty Scholarship

No abstract provided.

The Roles Of The State And The Market In Establishing Property Rights, Andrzej Rapaczynski

Faculty Scholarship

Using the experiences of Eastern Europe as an example, this article argues that, contrary to the economists' assumption that property rights are a precondition of a market economy, market institutions are often a prerequisite for a viable private property regime. Progress in the development of complex property rights in Eastern Europe, thus, cannot be expected to come primarily from a perfection of the legal system. Instead, it is more likely to arise as a market response to the demand for property rights. Indeed, legal entitlements can only be expected to become effective against a background of self-enforcing market mechanisms.

Dire Wolf Collects His Due While The Boys Sit By The Fire: Why Michigan Cannot Afford To Buy Into The Death Penalty, Justin P. Brooks, Jeanne Huey Erickson

Faculty Scholarship

No abstract provided.