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A Reader's Companion To Against Prediction: A Reply To Ariela Gross, Yoram Margalioth, And Yoav Sapir On Economic Modeling, Selective Incapacitation, Governmentality, And Race, Bernard E. Harcourt

Faculty Scholarship

From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review essays of "Against Prediction" by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist and critical race theory to the intricate details …

A Brief History Of American Telecommunications Regulation, Tim Wu

Faculty Scholarship

While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners of …

An Answer To The Question: "What Is Poststructuralism?", Bernard E. Harcourt

Faculty Scholarship

What is poststructuralism? It has always struck me as odd that so many critical theorists are reluctant to offer an answer to this question. In this essay, I unpack the term and provide a synoptic answer. Poststructuralism, I suggest, is a style of critical reasoning that focuses on the moment of ambiguity in our systems of meaning, as a way to identify the ethical choices that we make when we overcome the ambiguity and move from indeterminacy to certainty of belief in our efforts to understand, interpret, and shape our environment. Post-structuralism concentrates on the moment when we impose meaning …

On Copyright's Authorship Policy, Tim Wu

Faculty Scholarship

Making authors the masters of their own destiny has long been a stated aspiration of copyright. Yet more often than not, the real subjects of American copyright are distributors – book publishers, record labels, broadcasters, and others – who control the rights, bring the lawsuits, and take copyright as their "life-sustaining protection." Much of modern American copyright history, and particularly its legislative history, revolves on distributors either demanding more industry protection or fighting amongst themselves. It is distributors who make the great financial investments in copyrighted works, and distributors who arguably most need the incentives and protections that the system …

Recovering The Face-To-Face In American Immigration Law, Marie Failinger

Faculty Scholarship

Professor Failinger’s article begins with stories of the Chinese Exclusion period and modern Arizona border immigration. Tracing Emmanuel Levinas’ argument about violence and totalization of the vulnerable Other as it is manifested in discriminatory legislation in these periods, she argues for a return to the Face-to-Face in deciding immigration requests for admission to the U.S. through a rubric of equitable guided discretion.

Fuzzy Logic And Corporate Governance Theories, Z. Jill Barclift

Faculty Scholarship

Fuzzy logic is a theory that categorizes concepts or things belonging to more than one group. A methodology that explains how things function in multiple groups (not fully in one group or another) offers advantages when one definition or membership in a group accounts for belonging to multiple groups. A principal/agent model of corporate governance has some characterizations of fuzzy logic theory. The purpose of this article it to evaluate other models of corporate governance that account for the multi-agent role of senior officers of public companies and assess the accountability to the corporation. Corporate governance theorists continue to debate …

Universal Proceduralism, Edward J. Janger

Faculty Scholarship

No abstract provided.

Outing Outcomes: An Empirical Study Of Confidential Employment Discrimination Settlements, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel Bufford

Faculty Scholarship

This Article examines the Eurofood-E.C.J. decision and evaluates its impact on the decisions of the Irish and the Italian courts to open main insolvency cases for Eurofood. This Article also addresses the broader international insolvency law issues that the E.C.J. decision left open. Part II of this Article provides background information on the format and binding effect of a decision of the E.C.J. Part III explores the background of Parmalat and Eurofood and describes the Eurofood cases in the Irish and Italian courts prior to the E.C.J. decision. Part IV examines the E.C.J. decision, its rationale, and its application to …

A Novel Category Of Vague Abstracta, Jeffrey C. Goodman

Faculty Scholarship

Much attention has been given to the question of ontic vagueness, and the issues usually center around whether certain paradigmatically concrete entities – cats, clouds, mountains, etc. – are vague in the sense of having indeterminate spatial boundaries.  In this paper, however, I wish to focus on a way in which some abstracta seem to be locationally vague.  To begin, I will briefly cover some territory already covered regarding certain types of “traditional” abstracta and the ways they are currently alleged to be vague.  I then wish to discuss two types of “nontraditional” abstracta and the sense in which I …

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …

The First Restatement Of Agency: What Was The Agenda?, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Angelina And Madonna: Why All The Fuss? An Exploration Of The Rights Of The Child And Intercountry Adoption Within African Nations, Veronica S. Root

Faculty Scholarship

No abstract provided.

Beyond Blame—Mens Rea And Regulatory Crime, Arthur Leavens

Faculty Scholarship

In the first part of this Article, the Author briefly outlines the conceptual underpinnings of the common law approach to mens rea, with its blame focus, and the Supreme Court's early efforts to develop a different approach in interpreting regulatory criminal statutes. The Author begins the second part of this Article with Lambert v. California, in which the Court staked out the constitutional limits for the employment of strict liability in public welfare or regulatory crimes, and, first employed notice-based mens rea. This part goes on to examine the ensuing cases in which the Court, at least implicitly, fleshes out …

Witchcraft And Statecraft: Liberal Democracy In Africa, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Faculty Scholarship

No abstract provided.

Reading Back, Reading Black, Bennett Capers

Faculty Scholarship

No abstract provided.

Enhancing Drug Effectiveness And Efficacy Through Personal Injury Litigation, Anita Bernstein

Faculty Scholarship

No abstract provided.

Universal Proceduralism, Edward J. Janger

Faculty Scholarship

No abstract provided.

How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt

Faculty Scholarship

As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …

The Council Of Europe Addresses Cia Rendition And Detention Program, Monica Hakimi

Faculty Scholarship

In November 2005, the U.S. media reported that the Central Intelligence Agency was operating secret detention facilities in a handful of foreign countries, including two in eastern Europe, and that detainees were often transferred between those facilities and states known to engage in torture. The news that terrorism suspects may have been denied their human rights in member states of the Council of Europe caused concern within the Council and triggered several responses. Within days of the media reports, the Council's Parliamentary Assembly appointed a rapporteur to investigate the extent to which member states were participating in the CIA program. …

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

Recent developments in China’s courts reflect a paradox largely avoided in literature on the subject: Can China’s courts play an effective role in a non-democratic governmental system? Changes to courts’ formal authority have been limited, courts still struggle to address basic impediments to serving as fair adjudicators of disputes, and courts continue to be subject to Communist Party oversight. Courts have also confronted new challenges, in particular pressure from media reports and popular protests. At the same time, however, the Party-state has permitted, and at times encouraged, both significant ground-up development of the courts and expanded use of the courts …

Solving The ‘Initiatory Construction’ Puzzle (And Improving Direct Democracy) By Appropriate Refocusing On Sponsor Intent, Glenn Smith

Faculty Scholarship

This Article synthesizes and critiques a dozen years of scholarship about judicial construction of legislation passed by voter initiative. The Article then makes a comprehensive case for an alternative approach: an appropriately enhanced focus on the intent of initiative sponsors. More specifically, the Article validates, through analysis of recent California decisions, a longstanding scholarly consensus that the prevailing judicial search for "the intent of the voters" is seriously flawed. The Article provides the first synthesis to date of reform proposals offered by "initiatory-construction" scholars; the discussion contends that these proposals collectively fail four key evaluation criteria. Building on the 2003 …

Lng Facility Siting And Environmental (In)Justice: Is It Time For A National Siting Scheme?, Eileen Gauna

Faculty Scholarship

This Article examines the distributional and other environmental justice issues arising from the current initiative to rapidly site multiple LNG import facilities in order to increase the supply of natural gas into the continental United States. This Article further examines the necessity of creating a national siting scheme to avoid exacerbating existing racial disparities in risk-producing land use practices.

Property And Empire: The Law Of Imperialism In Johnson V. M'Intosh, Jedediah S. Purdy

Faculty Scholarship

Chief Justice Marshall's opinion in Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), has long been a puzzle, both in its doctrinal structure and in long, strange dicta which are both triumphal and elegiac. In this Essay, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, like the case itself, with the expropriation of continents and relations between dominant and subject peoples.

I examine several instances where the seeming incoherence of the opinion instead shows its debt to imperial jurisprudence, which rested on a distinction between …

Antigona: A Voice Rebuking Power, Margaret E. Montoya

Faculty Scholarship

No abstract provided.

The True Lex Mercatoria: Private Law Beyond The State, Ralf Michaels

Faculty Scholarship

Is there an anational lex mercatoria, a "global law without a state?" The debate seems infinite. Some argue that the rules, institutions, and procedures of international arbitration have now achieved a sufficient degree both of autonomy from the state and of legal character that they represent such an anational law. Others respond that whatever law merchant may exist is really state law—dependent on national norms and the freedom of contract they provide, and on the enforceability of arbitral awards by national courts. This paper suggests that the dichotomy of anational law and state law is false. Although an anational law …

Disloyal Agents, Deborah A. Demott

Faculty Scholarship

This paper examines the consequences of an agent's breach of the fiduciary duty of loyalty. These consequences are underexplored in academic literature, in contrast to rationales for fiduciary duties more generally. The consequences of an agent's disloyalty are, moreover, not uniform across jurisdictions. The paper begins by differentiating between the meaning and consequences that the law ascribes to agency and its meaning in other academic disciplines, including economics and philosophy. It then considers the extent to which principles derived from contract and tort law can account for the consequences that courts assign to agents' disloyal conduct and concludes that a …

Genes And Spleens: Property, Contract, Or Privacy Rights In The Human Body?, Radhika Rao

Faculty Scholarship

No abstract provided.