Digital Commons Network^™

The International Trading System, Jagdish N. Bhagwati

Faculty Scholarship

The 25th Anniversary of the founding of UNCTAD is an occasion to remember, not for its failures, which it shares inevitably with every international organization that is set up to address complex economic issues that concern developing countries with diverse constraints and objectives, but for its successes, which have been unduly neglected.

Here, I shall recount only three of the many intellectual accomplishments focusing on the early lead that UNCTAD has provided on questions that have attracted academic attention and invited policy redress in national and international fora.

How Law Can Be Determinate, Kent Greenawalt

Faculty Scholarship

This Article, part of a longer study, considers one problem about the objectivity of law. The problem is whether the law as it exists provides determinate answers to many legal questions for judges, other officials, and citizens. I emphasize the word many. This Article does not focus on "hard cases" and then ask whether single correct answers for them exist. It does not inquire whether in some complicated sense all legal questions have determinate answers. This is a treatment of easy legal questions. To most lawyers, it may seem self-evident that many legal questions do have determinate answers; and that …

Panel Iii: Congressional Control Of The Administration Of Government: Hearings, Investigators, Oversight, And Legislative History, Stephen Williams, Griffin Bell, L. Gordon Crovitz, Peter L. Strauss, Michael Davidson

Faculty Scholarship

My remarks will be the first on the panel to address the problems of legislative history. We have heard two quite illuminating discussions of congressional oversight activities, with which I largely agree philosophically. When one then reaches the questions of why is this happening, and whether anything can be done about it, the issues become more difficult. My remarks address some complications that may arise from the current distaste for legislative history that may make the oversight problem a little bit worse.

How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch

Faculty Scholarship

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …

"Carrot And Stick" Sentencing: Structuring Incentives For Organizational Defendants, John C. Coffee Jr.

Faculty Scholarship

The new "Draft Guidelines for Organizational Defendants" released by the U.S. Sentencing Commission on October 25, 1990, explicitly adopt a "'carrot and stick' approach" to sentencing. While the boldly instrumental use made of sentencing penalties and credits in these guidelines will trouble some, the larger question is whether the Commission's social engineering will work. Two issues stand out: First, is the Commission's carrot mightier than its stick? At first glance, this may seem a surprising question because the "stick" in the Commission's guidelines seemingly packs a Ruthian wallop: fines under the draft guidelines are based on a multiple of the …

Ethical Considerations For The Corporate Legal Counsel, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Costly Litigation And Legal Error Under Negligence, Keith N. Hylton

Faculty Scholarship

In this article, private enforcement under negligence when there is legal error and litigation is costly is examined. Ordover (1978) demonstrated that in a negligence regime in which there is no legal error and litigation is costly, equilibrium requires the presence of actors who refuse to obey the due-care standard. Accordingly, in such a negligence regime, an undercompliance equilibrium must result. Since the existence of litigation costs implies that the socially optimal level of care is greater than that required by the traditional Hand formula, which defines negligence as a failure to take care where the cost of taking care …

The Influence Of Litigation Costs On Deterrence Under Strict Liability And Under Negligence, Keith N. Hylton

Faculty Scholarship

This paper examines the influence of litigation costs on deterrence under strict liability and under negligence. By deterrence, I refer to the effect of the threat of liability on the care exercised by potential injurers. More precisely, this paper takes litigation costs as given and examines the social desirability of the levels of care exercised under negligence and under strict liability.

Mapping The Human Genome And The Meaning Of Monster Mythology, George J. Annas

Faculty Scholarship

Pre-Columbian cartographers drew their maps to the extent of their knowledge, and then wrote in the margins, "Beyond this point there are dragons." With the voyage of Columbus, we lost both our fear of the geographic frontier and our innocence. We accept that knowledge can generally overpower fear; but we have also learned that the application of new knowledge often has a dark side that can lead to brutality and disaster. The discovery of America, for example, led to unforeseen value conflicts of justice and fairness involving native Americans that were "resolved" only by their merciless subjugation and genocidal destruction. …

"Were There No Appeal": The History Of Review In American Criminal Courts, David Rossman

Faculty Scholarship

The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.

Limiting Section 301 Preemption: Three Cheers For The Trilogy, Only One For Lingle And Lueck, Michael C. Harper

Faculty Scholarship

After Lueck the preemption of state law claims by employees covered by collective bargaining agreements seemed to spread.²⁶ Lingle partially stemmed the flow, ²⁷ but the lower courts continue to deny significant state law rights to unionized employees in the name of section 301 and the arbitration process that it has encouraged. ²⁸ Many of these lower court decisions paint a much too broad swath of section 301 preemption through the range of employment rights now being made available by state law.

The fault, I suggest, lies with the preemption test suggested in Lueck and expressly articulated in Lingle …

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

Pregnancy, Drugs, And The Perils Of Prosecution, Wendy K. Mariner, Leonard H. Glantz, George J. Annas

Faculty Scholarship

In the war on drugs an offensive has been launched against pregnant women who use drugs. Over the past four years, prosecuting attorneys have been indicting women who use drugs while pregnant. In South Carolina alone, eighteen women who allegedly took drugs during pregnancy were indicted last summer for criminal neglect of a child or distribution of drugs to a minor.' In the only successful prosecution so far, Jennifer Johnson was convicted in Florida for delivering illegal drugs to a minor via the umbilical cord in the moment after her child was born and before the cord was clamped.^{2 …}

The Use Of Anti-Suit Injunctions In International Litigation, George A. Bermann

Faculty Scholarship

Of the various forms of provisional relief in the context of inter-national litigation, none has sparked as much interest and controversy as the international anti-suit injunction. In many ways the international anti-suit injunction, an instrument by which a court of one jurisdiction seeks to restrain the conduct of litigation in another jurisdiction, resembles more conventional forms of international provisional relief such as the foreign attachment or preliminary injunction. Like them, the anti-suit injunction affords courts an important opportunity to affect the course and significance of litigation abroad. However, such intervention strongly implies – and often actually creates – jurisdictional conflict …

When The Judge Is Not The Primary Official With Responsibility To Read: Agency Interpretation And The Problem Of Legislative History, Peter L. Strauss

Faculty Scholarship

As the other pages of this journal reflect, writing about statutory interpretation commonly builds on unarticulated assumptions about the occasion for interpretation, the identity of the interpreter, and the character of the interpreted text. In this paradigm, the occasion for interpretation is a litigated case – an episode has occurred for which the application of the statute is problematic. The interpreter is a judge, a person who resolves litigation – typically episodic, typically backwards – working outside of politics, and bearing no generic responsibility (that is, responsibility outside the decision of the case before her) for the statutory regime. And …

The Demand For Tax Return Preparation Services, Jeffrey A. Dubin, Michael J. Graetz, Michael A. Udell, Louis L. Wilde

Faculty Scholarship

We analyze taxpayer choices of return preparation services. We distinguish between two types of nonpaid preparers, six types of paid third parties, and self-preparation. Among other things, we find significant differences in the factors which explain the demand for paid third parties who are and are not able to represent clients before the IRS. Among these factors are increases in IRS audit rates and the frequency of IRS penalties.

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

Determinants Of Judicial Waiver Decisions For Violent Juvenile Offenders, Jeffrey Fagan, Elizabeth Piper Deschens

Faculty Scholarship

The selection of jurisdiction for adjudicating juvenile crime today is one of the most controversial debates in crime control policy, reflecting differences in assumptions about the causes of crime and philosophies of jurisprudence and punishment. For adolescent offenders, especially violent youth whose behaviors may pose particular social danger, critics view the traditional goals of the juvenile court and the "best interests of the child" standard as being at odds with public concerns for retribution and incapacitation of criminals. The choice between jurisdictions is a choice between the nominally rehabilitative dispositions of the juvenile court and the explicitly punitive dispositions of …

Sunstein's New Canons: Choosing The Fictions Of Statutory Interpretation Exchange, Eben Moglen, Richard J. Pierce Jr.

Faculty Scholarship

In Interpreting Statutes in the Regulatory State, Cass Sunstein grapples with two of the most difficult and important questions concerning governance of the modern administrative state. First, what institution should have the dominant role in interpreting ambiguous agency-administered statutes? And second, how should the institution perform that task? Sunstein rejects the Supreme Court's answer to the first question, characterizing its assignment of a dominant interpretive role to agencies in Chevron U.S.A., Inc. v Natural Resources Defense Council as "the fox guarding the hen house." Sunstein prefers to charge judges with the responsibility of resolving most interpretive disputes. In answer to …

Justice Harlan's Conservatism And Altenative Possibilities, Kent Greenawalt

Faculty Scholarship

Bruce Ackerman and Charles Fried's rich essays address the subject of Justice Harlan as a conservative. One who comes to this topic has in mind questions like: Was Justice Harlan a conservative? If so, what kind of a conservative was he? How did his judicial actions exemplify a conservative approach? Most importantly, is his conservatism an appealing model for modern judicial practice?

Professors Ackerman and Fried's slices on this topic reflect their own casts of mind and philosophies of judging. Fried looks at a broad range of Justice Harlan's opinions and sets them against particular conservative qualities that Fried commends. …

O'Er The Land Of The Free: Flag Burning As Speech, Kent Greenawalt

Faculty Scholarship

I am honored to lecture at this school, which has a number of friends, and a much larger circle of scholars whose work I admire. I am honored to lecture in the memory of Melville Nimmer, one of the country's leading thinkers on freedom of speech as well as its foremost expert on copyright. I met Professor Nimmer only once, at a lunch with Vince Blasi. My recollection of the lunch is distinct. Gently and in the most friendly way, but with irrefutable logic, they showed me that a position I had held for more than a decade about immigration …

The Perceived Authority Of Law In Judging Constitutional Cases, Kent Greenawalt

Faculty Scholarship

The purpose of this conference is a dialogue between scholars and judges about judging. Because judges have many opportunities to read what scholars think, and scholars don't very often have this kind of chance to hear judges reflect on their own experiences and perspectives, I expect the main benefit to go to us scholars. However, for many questions of jurisprudential interest, figuring out what relevance different judicial experiences might have is complicated, and extensive discussion may be necessary to learn what really matters.

I shall focus on a question that has lain at. the center of jurisprudential discussion in the …

Federal Jurisdiction, Ronald J. Mann

Faculty Scholarship

One important task of the federal judiciary is to resolve cases presenting tensions between national and state governments. The United States Court of Appeals for the Fifth Circuit justly is renowned for its work in this area. One major, if not sensational, arena in which these tensions surface is in cases presenting issues of federal jurisdiction, pursuant to which federal courts allocate power between the national and state judicial systems.

During the survey period the Fifth Circuit published almost one hundred opinions dealing with substantive issues of federal jurisdiction. Like others before me, I have not undertaken in this essay …

The Tolerant Society: A Response To Critics, Lee C. Bollinger

Faculty Scholarship

In writing The Tolerant Society I was, and yet remain, interested in the treatment of speech behavior in this country, a treatment notably more liberal than in other Western democracies. Liberality, however, is not its only surprising or distinguishing hallmark; so too is how the world is characterized under the free speech concept.

For some time, even after I began teaching in the first amendment area, the scope and nature of protection afforded speech seemed to me obviously right. But the more I thought about it, the more it seemed to me quite extraordinary. Existing free speech theory provided less …

More Than "Slightly Retro:" The Rehnquist Court's Rout Of Habeas Corpus Jurisdiction In Teague V. Lane, James S. Liebman

Faculty Scholarship

Someone I know, more a student of contemporary fashion than I, sometimes describes people dressed in uniformly dark clothing as "slightly retro." I am not sure of the allusion, but what I can discern leads me to think that the Supreme Court's nonretroactivity decisions beginning with Teague v. Lane are – puns aside – more than just "slightly retro."

The Court's innovation may be stated as follows: For 160 years, Congress empowered federal judges to order state officials to release or retry individuals held in custody in violation of federal law as those federal judges, and not the state officials, …

The Strategic Structure Of Offer And Acceptance: Game Theory And The Law Of Contract Formation, Avery W. Katz

Faculty Scholarship

The purpose of this article is to promote a particular research program; namely, the use of game theory to analyze the law of contract formation. Although I will often simply speak of offer and acceptance in my discussion, I mean to refer to a broader set of issues than are commonly denoted by this doctrinal label. My program transcends the narrow issue of whether particular communications technically should be classified as offers and acceptances, and includes questions often analyzed under the rubrics of implication and interpretation. At its broadest, my argument addresses all legal rules that answer two types of …

Harmless Error And The Valid Rule Requirement, Henry Paul Monaghan

Faculty Scholarship

Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless …

The Rule Of Law And The Two Realms Of Welfare Administration, William H. Simon

Faculty Scholarship

Although it was not the first case in which the Supreme Court upheld a welfare claim, Goldberg v. Kelly is often thought of as the case that extended the rule of law to the welfare system. In doing so, it repudiated the "right/privilege" distinction that would confine procedural protections of economic interests to private law claims.

But Goldberg did not challenge basic assumptions about the nature of procedural fairness that the legal culture had developed principally in connection with private law claims. Its conception of fairness focused on claims initiated by individuals for relief for themselves, and on an adjudicatory …

What Triggers Revlon?, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Delaware's new approach to takeover law is announced in three cases that address different aspects of management's role in the standard drama of defending against a hostile takeover. Unocal Corp. v. Mesa Petroleum Co. scripts a main act for the drama by prescribing a duty to compare the outsider's offer with the universe of other options and, if necessary, to resist the outsider within the guidelines fixed by the proportionality test. Moran v. Household International, Inc. writes a prologue by encouraging management to plan a vigorous defense that can thwart a coercive offer without damaging the company. Finally, Revlon …

Desegregating Politics: "All-Out" School Desegregation Explained, James S. Liebman

Faculty Scholarship

School desegregation is not dead. It lives quietly in what used to be the Confederate South. Notwithstanding the Reagan and Bush Administrations' ten-year campaign to limit the legal, remedial, and temporal scope of court-ordered integration plans throughout the nation, desegregation persists in southern rural areas where substantial numbers of black Americans continue to reside and in southern urban areas where school districts were organized in 1970 to encompass not only the inner city but also the suburbs. By many accounts, moreover, desegregation is an effective and accepted – one may even say respected – member of the family of social …