Digital Commons Network^™

Relational Contracting In A Digital Age, Franklin G. Snyder

Faculty Scholarship

If, as it has sometimes been argued, changes in contract rules and theory are strongly affected by changes in economic conditions, we should note that the world has changed a good deal since the early 1960s when relational contract theory began to bloom. The economic world of 2004 is very different from the world of 1964. Modern relational contract theory was born about the same time as its great theoretical competitor, the rational choice approach of the legal economists. It came before the vast changes wrought by the information revolution and the increased globalization of the economy. What has relational …

The Rhetorics Of Taking Cases: It's Mine V. Let's Share, Susan Ayres

Faculty Scholarship

Regulatory takings cases originated in 1922 when Justice Holmes, in Pennsylvania Coal Co. v. Mahon, ruled that "while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking." This simple rule has resulted in over eighty years of case law that Carol Rose states has left takings law to "muddle along." While many legal scholars decry the incoherence and inconsistency of takings case law, this article provides a rhetorical analysis that explains the "muddle" as a result of rhetorical tensions between a Sophistic approach ("Let's Share") and an Aristotelian …

The Shaft: The Hadley V. Baxendale Song, Franklin G. Snyder

Faculty Scholarship

Professor Snyder wrote the lyrics to this song to help students learn the important points from the leading English contract law case Hadley v. Baxendale.

Hadley V. Baxendale And Other Common Law Borrowings From The Civil Law, Wayne Barnes

Faculty Scholarship

In 1854, the English Exchequer Court delivered the landmark case of Hadley v. Baxendale. That case provided, for the first time in the common law, a defined rule regarding the limitations on recovery of damages for breach of contract. It has been widely celebrated as a landmark in the law of contracts, and more widely as a triumph of the common law system. A little over a decade after it was decided, it had already become highly regarded, for Chief Baron Pollock stated in 1866: “[A] more extensive and accurate knowledge of decisions in our law books, and a more …

Popular? Constitutionalism?, Larry Alexander, Lawrence B. Solum

Faculty Scholarship

Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says boo to the ultimate constitutional authority of the courts and hooray to a populist tradition that empowers Presidents to act as Tribunes of the People and has even included constitutional interpretation by mob. Along the way, …

Reconsidering The Commission’S Treatment Of Tribal Courts, Kevin Washburn

Faculty Scholarship

Since the U.S. Sentencing Commission first enacted the federal Sentencing Guidelines, the Guidelines have treated tribal courts in a manner that is impossible to reconcile with other modem federal policies of respect for tribal self-determination and self-governance. In refusing to count tribal convictions for purposes of routine calculation of criminal history, the Commission has disrespected tribal courts. The Commission's tribal courts policy is anachronistic and out of step with modem efforts to support tribal courts. The Commission should amend the guidelines to reflect the principle that misdemeanor convictions from tribal courts are entitled to the same level of respect as …

Insurance Bad Faith And Punitive Damages After Sloan V. State Farm, David J. Stout

Faculty Scholarship

The New Mexico Court of Appeals had concluded that there was a "real distinction" between the "bad faith" sufficient to prove a simple breach of the implied covenant of good faith and fair dealing for an award of compensatory damages and the "bad faith" sufficient to sustain an award of punitive damages.

Recently the New Mexico Supreme Court clarified when an instruction on punitive damages must be given in an insurance bad faith case. The court's analysis is noteworthy for the effort to clarify the standards for both first and third patty bad faith. Finally, the court rewrote UJI Civil …

Who's Afraid Of The Precautionary Principle?, Robert V. Percival

Faculty Scholarship

The precautionary principle – the notion that lack of scientific certainty should not foreclose precautionary regulation – has become enormously popular in recent years, as reflected by its endorsement in many important international declarations and agreements. Despite its growing influence, the precautionary principle recently has come under fire by critics who argue that it is incoherent, potentially paralyzing, and that it will lead regulators to make bad choices. They maintain that society faces greater peril from overly costly regulations than from exposure to sources of environmental risks whose effect on human health and the environment is not fully understood at …

An Introduction, Randy Lee

Faculty Scholarship

No abstract provided.

Recognizing That They Watch, Mary Kate Kearney

Faculty Scholarship

No abstract provided.

Targets, Timetables And Effective Implementing Mechanisms: Necessary Building Blocks For Sustainable Development, John C. Dernbach

Faculty Scholarship

No abstract provided.

Whatever Happened To Law And Economics?, Anita Bernstein

Faculty Scholarship

No abstract provided.

Under A Critical Race Theory Lens -- Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo A. Pedrioli

Faculty Scholarship

This critical book review argues that James T. Patterson’s narrative in, "Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy," is a mostly balanced historical reflection. Here, the term balanced will refer to giving consideration to both the negative and positive aspects of the phenomenon in question. To advance its thesis, the book review initially offers an overview of Patterson’s historical narrative and evaluation of the Brown legacy. Then the book review analyzes Patterson’s conclusions through a Critical Race Theory lens. Given the focus of Critical Race Theory on race and the law, especially on how …

Bend It Like Beckham And Real Women Have Curves: Constructing Identity In Multicultural Coming-Of-Age Stories, Linda C. Mcclain

Faculty Scholarship

This Article looks at the coming-of-age stories in two recent films, Bend It Like Beckham and Real Women Have Curves, as an avenue to explore the question of constructing identity. Both films, arising out of the filmmakers' experiences, aim to offer representations of particular individuals in minority groups that challenge dominant representations. They also offer aspirational visions of how such individuals might find a way to construct a hybrid identity that allows them to negotiate their place within the various groups that claim them and within the broader society. How, the article asks, do the heroines in these films find …

The Republic Of Choice, The Pledge Of Allegiance, The American Taliban, Pnina Lahav

Faculty Scholarship

In two important books, The Republic of Choice and The Horizontal Society, published in 1990 and 1999 respectively, Lawrence M. Friedman presents his theories of a massive social transformation which occurred in the last century. I wish to examine these theories through the prism of two cases: Elk Grove Unified School District v. Newdow3 and Hamdi v. Rumsfeld,4 both decided in the spring of 2004. Both Newdow and Hamdi have been at the center of public controversy for many months; each case carries many of the ingredients presented in Friedman's The Republic of Choice and The Horizontal Society. I shall …

The Story Of ‘Hoffman Plastic Compounds V. Nlrb’: Labor Rights Without Remedies For Undocumented Immigrants, Catherine Fisk, Michael J. Wishnie

Faculty Scholarship

In Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), the United States Supreme Court held that undocumented workers are not entitled to remedies for violations of their rights to unionize under the National Labor Relations Act. The majority of the Court viewed enforcement of immigration policy prohibiting employment of undocumented workers as more important than protecting the labor rights of both undocumented workers and their U.S. citizen co-workers who join their efforts to improve working conditions. The chapter explores the origins of the case in a minimum-wage factory in Los Angeles, the surprising turn of events when the illegally …

Creating European Rights: National Values And Supranational Interests, Francesca E. Bignami

Faculty Scholarship

This Article develops an explanation for the emergence of individual rights before the European Commission, one of the oldest and most powerful international organizations in existence today. I argue that, in the early days of the European Community, rights before the Commission were patterned on the laws and legal traditions of the dominant Member States. Changing political circumstances largely outside the control of the Commission and other European institutions gave rise to a number of discrete, historical challenges to their authority. Most of these challenges came from citizens with allegiances to minority, national constitutional symbols and practices who were determined …

Globalizing Savigny: The State In Savigny’S Private International Law, And The Challenge Of Europeanization And Globalization, Ralf Michaels

Faculty Scholarship

How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny's approach will not help: While Savigny's approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that …

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Re-Establishing The Sisseton-Wahpeton Oyate's Reservation Boundaries: Building A Legal Rationale From Current International Law, Angelique Eaglewoman

Faculty Scholarship

This article examines one tribal nation as an example of the many land loss issues facing Tribes at present. Through the example of the Sisseton-Wahpeton Oyate history of treaties, agreements, land cessions, and finally a federal ruling of reservation disestablishment, the policies of the United States regarding Indian lands will be shown. To reestablish the territorial boundaries of the Sisseton-Wahpeton Oyate, federal recognition is necessary in the United States. International law principles from the United Nations, the International Labor Organization, and the Organization of American States may provide legal support for the re-recognition of the reservation boundaries.

Lifting The Pall Of Orthodoxy: The Need For Hearing A Multitude Of Tongues In And Beyond The Sexual Education Curricula At Public High Schools, Carlo A. Pedrioli

Faculty Scholarship

When public high schools promote heterosexuality at the cost of denying sexual minority youth the opportunity to learn about minority sexualities, these schools contribute to the disastrous situation in which many sexual minority high school students find themselves. This approach, which many public high schools take, is unnecessarily destructive and warrants prompt change. Instead of helping to perpetuate many of the challenges that sexual minority students face in high school, public high schools can and need to help address these challenges. To establish the case for such a position, this article begins by presenting the plight of many sexual minority …

Private Language, Public Laws: The Central Role Of Legislative Intent In Statutory Interpretation, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Rise And Fall Of Law And Economics: An Essay For Judge Guido Calabresi, Ugo Mattei

Faculty Scholarship

No abstract provided.

A Conversation About Takings And Water Rights, John D. Leshy

Faculty Scholarship

No abstract provided.

Global Democracy, Joshua Cohen, Charles F. Sabel

Faculty Scholarship

In this Article, we describe an emerging arena of global administration. We claim that this arena, not bounded by a state, raises accountability problems of a kind different from those addressed by conventional administrative law. And we argue that measures designed to address these problems will have potentially large implications for democratic theory and practice.

Our argument starts from the premise – stated here without nuance – that something new is happening politically beyond the borders of individual states and irreducible to their voluntary interactions. To distinguish these developments from what is commonly called "international law and politics," we use …

The Mosaic Theory, National Security, And The Freedom Of Information Act, David E. Pozen

Faculty Scholarship

This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began asserting the theory more aggressively after 9/11, thereby testing the limits of executive secrecy and of judicial deference. Though essentially valid, the mosaic theory has been applied in ways that are unfalsifiable, in tension with the text and purpose of FOIA, and susceptible to abuse and overbreadth. This Note therefore argues, against precedent, for greater judicial scrutiny of mosaic theory …

Anticipating Litigation In Contract Design, Robert E. Scott, George G. Triantis

Faculty Scholarship

Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design in a world of costly litigation. We examine the efficiency of investment at the front end and back end of the contracting process, where we focus on litigation as the back-end stage. In deciding whether to express their obligations in precise or vague terms, contracting parties implicitly allocate costs between the front and back end. When the …

Judging Partisan Gerrymanders Under The Elections Clause, Jamal Greene

Faculty Scholarship

Twice in the last two decades, the Supreme Court has come within two votes of declaring partisan gerrymandering – the manipulation of district lines for partisan ends – a nonjusticiable political question. Last Term, in Vieth v. Jubelirer, Pennsylvania Democrats challenged an alleged Republican gerrymander of the state's congressional districts. Four members of the Court thought the question nonjusticiable, and one, Justice Kennedy, thought it justiciable under the Equal Protection Clause but nonetheless rejected the plaintiffs claims. Eighteen years earlier, in Davis v. Bandemer, a three-Justice plurality had held that a political group complaining of partisan gerrymandering – the Democratic …

Statutes That Are Not Static – The Case Of The Apa, Peter L. Strauss

Faculty Scholarship

...[T]he lesson of the past two hundred years is that we will do well to be on our guard against all-purpose theoretical solutions to our problems. As lawyers we will do well to be on our guard against any suggestion that, through law, our society can be reformed, purified, or saved. The function of law, in a society like our own, is altogether more modest and less apocalyptic. It is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us. …

The Story Of United States V. Salerno: The Constitutionality Of Regulatory Detention, Daniel C. Richman

Faculty Scholarship

Is it constitutional for the government to lock up people without waiting to convict them at trial? If it is, what are the limits on the government's power to lock up anyone it deems dangerous? These are issues raised by preventive detention provisions in bail statutes, and addressed in United States v. Salerno. The controversy about these bail statutes, once so hotly contested, has died down. But the broader questions about the government's power to detain suspected criminals without giving them the benefit of full criminal process remain unresolved, and have taken on a new urgency as the nation confronts …