Digital Commons Network^™

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Modest Procedural Reform Advances In The U.S., Richard L. Marcus

Faculty Scholarship

No abstract provided.

Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, Nancy Kim, D.A. Jeremy Telman

Faculty Scholarship

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put …

Policing Sex: The Colonial, Apartheid, And New Democracy Policing Of Sex Work In South Africa, I. India Thusi

Faculty Scholarship

The history of the policing of sex work in South Africa reveals the surprisingly contradictory manners that legal regulations, police action, and public discourses have all “policed” sex work to meet competing goals. Sex work has generally been subject to formal state policing in the form of legal regulations and laws, which mostly focus on the public nuisance aspects of it. However, there has also been a more informal policing of sex work through public discourses in the media, medical community, and amongst activists. These various forms of policing are at times contradictory, and may result in various approaches toward …

Promoting Contract Flexibility Through Trademarks: "Branded" Intellectual Property Licensing Practices, Nari Lee, Thomas D. Barton

Faculty Scholarship

No abstract provided.

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank Upham

Faculty Scholarship

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

Keynote Reflections: The Public Governance Duty, Steven L. Schwarcz

Faculty Scholarship

Firms must take ever greater risks to try to innovate and create value in our increasingly competitive and complex global economy. Corporate governance law generally delegates control over excessive risk-taking to the firm’s investors, principally its risk-seeking shareholders. But this does not cover the type of risk-taking that led to the global financial crisis and that is becoming ever more common - risk-taking that could have systemic consequences to the financial system. I argue for a “public governance duty,” requiring managers of systemically important firms to assess the impact of risk-taking on the public as well as on investors, and …

When Governments Write Contracts: Policy And Expertise In Sovereign Debt Markets, W. Mark C. Weidemaier, Mitu Gulati, Anna Gelpern

Faculty Scholarship

At least three times in the past two decades, national governments and institutions at the regional and international levels have tried to reform sovereign bond contracts to facilitate debt restructuring. Increasingly, these efforts have focused on promoting majority modifications clauses, a species of collective action clause (CAC) that facilitates a binding debt restructuring. Rather than legislate or regulate, governments have convened expert commissions, produced model CACs, and aggressively marketed these clauses to debtors and creditors. When events prove the existing CAC template inadequate or irrelevant, the process begins anew. This paper considers this mode of government intervention, which has a …

Where Have All The Patent Lawyers Gone? Long Time Passing..., Kenneth L. Port, Molly R. Littman, Lucas Hjelle

Faculty Scholarship

This article pursues two distinct, but related hypotheses. First, as total LSAT takers decline, we expect to see a decline in the number of new attorneys admitted to the patent bar. Second, as the number of new patent attorneys shrinks and the number of women pursuing engineering degrees increases, we expect that the patent bar will become more female.

In order to test these hypotheses, we gathered and collated data from the Law School Admission Counsel (LSAC) regarding students taking the Law School Admissions Test (LSAT), the United States Patent and Trademark Office (USPTO), the Society of Women Engineers (SWE), …

Disciplining The Financial Failure: An Exploration Of Bankruptcy Law As An Active Discourse In Market Capitalism, Linda E. Coco

Faculty Scholarship

No abstract provided.

Reverse Nullification And Executive Discretion, Michael T. Morley

Faculty Scholarship

No abstract provided.

Troubled Waters Diana Nyad And The Birth Of The Global Rules Of Marathon Swimming, Hadar Aviram

Faculty Scholarship

No abstract provided.

Contract Law And Fundamental Legal Conceptions: An Application Of Hohfeldian Terminology To Contract Doctrine, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip A. Hamburger

Faculty Scholarship

Exclusion from the political process is a central question in American law. Thus far, however, it has not been recognized how religious Americans are excluded from the political process and what this means for religious equality.

Put simply, both administrative lawmaking and § 501 (c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. As a result, apparently equal laws are apt, in reality, to be unequal for religious Americans. Political exclusion threatens religious equality.

The primary practical conclusion concerns administrative law. It will be seen that this sort of "law" is made …

Admin, Elizabeth F. Emens

Faculty Scholarship

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work – both managerial and secretarial – that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters. Both equity and efficiency are at stake here. Admin raises distributional concerns about those people – often women – who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home …

Anticipatory Remedies For Takings, Thomas W. Merrill

Faculty Scholarship

The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court's most recent takings cases, results in the entry of an anticipatory decree about takings liability. This Essay argues that the second line is the correct one. Courts should be allowed to enter declaratory or other anticipatory judgments about takings liability, as long as they respect the limited nature of …

Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman

Faculty Scholarship

This Article examines one year of publicly available criminal judgments from a basic-level rural county court and an intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

The Inversion Of Rights And Power, Philip A. Hamburger

Faculty Scholarship

No constitutional test is more important than the compelling-government-interest test. It is the foundation of all analysis of constitutional rights. But can a government interest really defeat a constitutional right?

The courts repeatedly say that claims of constitutional rights must give way to government interests.The courts even sometimes say that a compelling government interest justifies the infringement of a right – as when the Supreme Court asks "whether some compelling state interest ... justifies the substantial infringement of appellant's First Amendment right." In support of such doctrine, it often is said that rights are "not absolute."

This sort of analysis …

Rethinking Jacob & Youngs V. Kent, Victor P. Goldberg

Faculty Scholarship

Most living lawyers have run into Jacob & Youngs, Inc. v. Kent in their legal education. It has long been a staple in Contracts casebooks. While the result has been widely applauded, in recent years there has been some push-back. Professor Kenneth Ching has recently criticized both Cardozo’s argument and the result. Professor Robert Scott in a number of papers, some coauthored, has also concluded that the result was wrong. Yet given the state of New York law at the time Cardozo’s result was correct. Moreover, I will argue, the outcome is one that parties would adopt today. Ironically, despite …

Administrative Law, Public Administration, And The Administrative Conference Of The United States, Gillian E. Metzger

Faculty Scholarship

From its birth, administrative law has claimed a close connection to governmental practice. Yet as administrative law has grown and matured it has moved further away from how agencies actually function. The causes of administrative law’s disconnect from actual administration are complex and the divide is now longstanding, but it is also a source of concern given the increasing importance of internal administration for ensuring accountable government. This Article analyzes the contemporary manifestations and historical origins of administrative law’s divide from public administration, as well as the growing costs of this disconnect. It also describes the Administrative Conference of the …

Children's Health In A Legal Framework, Elizabeth S. Scott, Clare Huntington

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …

Does Google Content Degrade Google Search? Experimental Evidence, Michael Luca, Tim Wu, Sebastian Couvidat, Daniel Frank

Faculty Scholarship

While Google is known primarily as a search engine, it has increasingly developed and promoted its own content as an alternative to results from other websites. By prominently displaying Google content in response to search queries, Google is able to use its dominance in search to gain customers for this content. This may reduce consumer welfare if the internal content is inferior to organic search results. In this paper, we provide a legal and empirical analysis of this practice in the domain of online reviews. We first identify the conditions under which universal search would be considered anticompetitive. We then …

Three Essays In Criminal Justice, Bernard E. Harcourt

Faculty Scholarship

How could the New York Times call the grand jury’s decision to no bill the indictment against officer Darren Wilson in Ferguson, Missouri, a “verdict”? How could federal appellate judges call it a “procedural shortcut” when a state judge, in a death penalty case, signs the state attorney general’s proposed judicial opinion without even striking the word “proposed” or reviewing the full opinion? What do these incidents tell us about contemporary criminal justice? These essays explore these puzzles. The first, “Verdict and Illusion,” begins to sketch the role of illusions in justice. The second, “A Singe Voice of Justice,” interprets …

The ’73 Graft: Punishment, Political Economy, And The Genealogy Of Morals, Bernard E. Harcourt

Faculty Scholarship

In this essay, I explore the place of a genealogy of morals within the context of a history of political economy. More specifically, I investigate the types of moralization – of criminals and delinquents, of the disorderly, but also of political economic systems, of workers and managers, of rules and rule-breaking – that are necessary and integral to making a population accept new styles of political and economic governance, especially the punitive institutions that accompany modern political economies in the contemporary period.

The marriage of political economy and a genealogy of morals: this essay explores how the moralization of certain …

Intention And Value, Joseph Raz

Faculty Scholarship

The paper sketches the role of reasons and intentions in leading to action with an intention, explaining the way possession of rational powers transforms the formation of intentions. Part One explains how when humans act with an intention they act in the belief that there is value in the action. Part Two explains the relative role of value and intention in “producing” the action, and relates their role to that of motivation.

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s …

A Crib Sheet For Contracts Profs, Victor P. Goldberg

Faculty Scholarship

Over the last two decades I have been digging into the facts on a number of contracts cases, many of them featured in casebooks. I have collected the material in two books; one appeared in 2006 and the other is hot off the presses. This brief paper provides a roadmap for professors who might want more depth on the cases than is provided in the decisions or the casebooks. A recurring theme in the two books is that parties designing their contractual relationships must deal with change. This shows up in the manner in which they price the option to …

The Private Life Of Drm: Lessons On Privacy From The Copyright Enforcement Debates, Rebecca Wexler

Faculty Scholarship

This Article presents an intellectual history of competing privacy claims and counterclaims in policy debates about copyright enforcement methods. Specifically, it examines debates over Digital Rights Management technologies, or encryption tools that track the use of, and restrict access to, copyrighted information. The Article finds that, historically, information privacy claims in these debates did not lead to determinant outcomes; each argument drawn from a privacy interest corresponds to a counterclaim drawn from that same interest but supporting an opposite policy preference. Moreover, these competing claims on privacy cannot be explained as mere superficial semantics. Rather, they concern a variety of …

Convergence And Persistence In Corporate Law And Governance, Jeffrey N. Gordon

Faculty Scholarship

This chapter discusses the question of “convergence or persistence” in corporate law and governance. It first considers efforts to measure convergence directly by focusing on the evolution of law-on-the-books governance provisions before analyzing capital market evidence on convergence, with particular emphasis on capital market indicators such as the decline in “cross-listings” onto US stock exchanges by firms from jurisdictions with weaker investor protection and the increase in initial public offerings (IPOs) on emerging market stock markets. The chapter proceeds by reviewing evidence of divergence, especially “divergence within convergence,” and the failure of the European Union to produce more convergent corporate …