Digital Commons Network^™

The Bustle Of Horses On A Ship: Drug Control In New York City Public Housing, Jeffrey Fagan, Garth Davies, Jan Holland, Tamara Dumanovsky

Faculty Scholarship

For decades, violence, drugs and public housing have been closely linked in political culture and popular imagination. In 1990, the Department of Housing and Urban Development (HUD) made funds available to public housing authorities to combat drug and crime problems. This program, the Drug Elimination Program (DEP) combined several strategies under one administrative umbrella: police enforcement, drug treatment, drug prevention, youth and gang outreach, community organizing, integrated health and social service agencies, and tenant mobilization projects. In New York, the Housing Authority spent $165 million on DEP in its 330 public housing sites between 1990 and 1996. Yet there has …

Policing L.A.'S Skid Row: Crime And Real Estate Redevelopment In Downtown Los Angeles [An Experiment In Real Time], Bernard E. Harcourt

Faculty Scholarship

In this article, I document the present. I make a record, with photographs, interviews, maps, and observations of L.A.'s Skid Row as it is today. Drawing on the tradition and methods of critical socio-legal studies, I also explore the constitutive dimensions of deviance. I investigate the possible attraction that disorderliness and criminality may have to today's urban pioneers. I explore the idea that deviance and disorder may become, in some corners, a consumable good to urban dwellers. And I do this by drawing on numerous hours of personal observation on the streets of L.A.'s Skid Row, on interviews of service …

Developmental Incompetence, Due Process, And Juvenile Justice Policy, Elizabeth S. Scott, Thomas Grisso

Faculty Scholarship

In 2003, the Florida District Court of Appeal reversed the murder conviction and life sentence imposed on Lionel Tate, who was twelve years old when he killed his six-year-old neighbor. Since Lionel was reported to be the youngest person in modern times to be sent to prison for life, the case had generated considerable debate, and the decision was appealed on several grounds. What persuaded the appellate court that the conviction could not stand, however, was the trial court's rejection of a petition by Lionel's attorney for an evaluation of his client's competence to assist counsel and to make a …

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?

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 …

Serial Entrepreneurs And Small Business Bankruptcies, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Chapter 11 is thought to preserve the going-concern surplus of a financially distressed business – the extra value that its assets possess in their current configuration. Financial distress leads to conflicts among creditors that can lead to inefficient liquidation of a business with going-concern surplus. Chapter 11 avoids this by providing the business with a way of fashioning a new capital structure. This account of Chapter 11 fails to capture what is happening in the typical case. The typical Chapter 11 debtor is a small corporation whose assets are not specialized and rarely worth enough to pay tax claims. There …

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 …

A Defense Of Paid Family Leave, Gillian Lester

Faculty Scholarship

The problem of combining work and family life is perhaps the central challenge for the contemporary American family. In this Article, I evaluate and defend government provision of paid family leave, a benefit that would allow workers to take compensated time off from work for purposes of family caregiving.

A legal intervention in the arena of work-family accommodation can only build on some prior normative understanding of the family, and embedded within that, contested value choices about women's identities and entitlements in workplace, family, and society. I am not the first legal scholar to advocate paid family leave of some …

An Analysis Of The Nypd's Stop-And-Frisk Policy In The Context Of Claims Of Racial Bias, Andrew Gelman, Alex Kiss, Jeffrey Fagan

Faculty Scholarship

Recent studies by police departments and researchers confirm that police stop racial and ethnic minority citizens more often than whites, relative to their proportions in the population. However, it has been argued stop rates more accurately reflect rates of crimes committed by each ethnic group, or that stop rates reflect elevated rates in specific social areas such as neighborhoods or precincts. Most of the research on stop rates and police-citizen interactions has focused on traffic stops, and analyses of pedestrian stops are rare. In this paper, we analyze data from 175,000 pedestrian stops by the New York Police Department over …

Attention Felons: Evaluating Project Safe Neighborhoods In Chicago, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

This research uses a quasi-experimental design to evaluate the impact of Project Safe Neighborhood (PSN) initiatives on neighborhood level crime rates in Chicago. Four interventions are analyzed: (1) increased federal prosecutions for convicted felons carrying or using guns, (2) the length of sentences associated with federal prosecutions, (3) supply-side firearm policing activities, and (4) social marketing of deterrence and social norms messages through justice-style offender notification meetings. Using an individual growth curve models and propensity scores to adjust for non-random group assignment, our findings suggest that several PSN interventions are associated with greater declines of homicide in the treatment neighborhoods …

Is Obtaining An Arrestee's Dna A Valid Special Needs Search Under The Fourth Amendment? What Should (And Will) The Supreme Court Do?, Tracey Maclin

Faculty Scholarship

An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex …

Going-Private Decisions And The Sarbanes-Oxley Act Of 2002: A Cross-Country Analysis, Ehud Kamar, Pinar Karaca-Mandic, Eric L. Talley

Faculty Scholarship

This article investigates whether the passage and the implementation of the Sarbanes-Oxley Act of 2002 (SOX) drove firms out of the public capital market. To control for other factors affecting exit decisions, we examine the post-SOX change in the propensity of public American targets to be bought by private acquirers rather than public ones with the corresponding change for foreign targets, which were outside the purview of SOX. Our findings are consistent with the hypothesis that SOX induced small firms to exit the public capital market during the year following its enactment. In contrast, SOX appears to have had little …

The Story Of Vermont Yankee: A Cautionary Tale Of Judicial Review And Nuclear Waste, Gillian E. Metzger

Faculty Scholarship

This Essay explores the puzzle of Vermont Yankee v. NRDC. Vermont Yankee stands as a definitive rejection of judicial efforts to control burgeoning informal rulemaking by adding to the procedural requirements contained in the Administrative Procedure Act. Yet judicial expansion of the APA's procedural requirements has continued apace, and the Court's simultaneous sanction of searching substantive scrutiny sits oddly with its excoriation of the D.C. Circuit for that court's perceived procedural excesses. To understand Vermont Yankee, the Essay puts the decision in its administrative and judicial context, exploring the case law and practical dilemmas facing administrators, advocates, and judges as …

The Effectiveness Of Juvenile Correctional Facilities: Public Versus Private Management, Patrick J. Bayer, David Pozen

Faculty Scholarship

This paper uses data on juvenile offenders released from correctional facilities in Florida to explore the effects of facility management type (private for-profit, private nonprofit, public state-operated, and public county-operated) on recidivism outcomes and costs. The data provide detailed information on individual characteristics, criminal and correctional histories, judge-assigned restrictiveness levels, and home zip codes — allowing us to control for the nonrandom assignment of individuals to facilities far better than any previous study. Relative to all other management types, for-profit management leads to a statistically significant increase in recidivism, but relative to nonprofit and state-operated facilities, for-profit facilities operate at …

Legal Status And Rights Of Undocumented Workers: Advisory Opinion Oc-18, Sarah H. Cleveland

Faculty Scholarship

In Advisory Opinion OC-18 of September 17, 2003, the Inter-American Court of Human Rights ruled that international principles of nondiscrimination prohibit discriminating against undocumented migrant workers in the terms and conditions of work. The Court acknowledged that governments have the sovereign right to deny employment to undocumented immigrants, but held that such workers are equally protected by human rights in the workplace once an employment relationship is initiated. In other words, states may not further their immigration policies by denying basic workplace protections to undocumented employees.

Property, Michael A. Heller

Faculty Scholarship

This article argues that despite its seeming disintegration, property is more vibrant than ever — it is a field that has focused on understanding the formal and informal institutions by which society channels decision-making for scarce resources. Many exciting recent innovations in property theory have arisen through dialogue between US and Commonwealth scholars and legislatures. The article is organized as follows. The first part explains the focus on analytic property theory, which is posed in distinction to a jurisprudential approach. The second part introduces the familiar division of ownership into a trilogy of ideal types: private, commons, and state. The …

Marriage Equality In New Jersey, Suzanne B. Goldberg

Faculty Scholarship

The question at the heart of the current challenge to New Jersey's marriage law is not a complicated one: Can the state maintain different rules for recognizing the relationships of gay and non-gay couples?

Child Custody, Religious Practices, And Conscience, Kent Greenawalt

Faculty Scholarship

This article asks to what extent considerations relating to religion should figure in custody disputes. One inquiry is whether the kind of religious life that a parent plans for his or her child should figure in the decision whether to grant custody to that parent. The article focuses on a religious life that involves very substantial deprivation no after-school activities, no television, no pets, no reading except schoolwork and the Bible-from an ordinary secular perspective. A second inquiry is whether one parent of a divorced couple should be able to prevent the other parent from exposing a child to various …

Electing Delegates To A State Constitutional Convention: Some Legal And Policy Issues, Richard Briffault

Faculty Scholarship

On July 6, 2004, then-Governor James E. McGreevey signed into law a measure intended to address one of New Jersey's most contentious and explosive issues, the property tax. The law called for the creation of the Property Tax Convention Task Force (the "Task Force") to develop recommendations concerning the design of a state constitutional convention for revamping the existing property tax system. In addition to analyzing the scope, operation, and timing of a property tax convention, one of the principal tasks of the Task Force was to determine the method for the election of delegates. The New Jersey Constitution is …

Global Warming As A Public Nuisance, Thomas W. Merrill

Faculty Scholarship

On July 21, 2004, eight State Attorneys General and the City of New York brought suit in federal district court in the Southern District of New York, seeking to adjudicate the issue of global warming as a public nuisance. Six large electric power producers were named as defendants. The complaint filed in Connecticut v. American Electric Power Co., as the action is styled, alleges that emissions of greenhouse gases from the defendants' plants, in particular carbon dioxide (C02), are contributing to global warming. Count I claims that these greenhouse gas emissions are an actionable public nuisance governed by federal …

Causation By Presumption? Why The Supreme Court Should Reject Phantom Losses And Reverse Broudo, John C. Coffee Jr.

Faculty Scholarship

Over a quarter of a century ago, Judge Henry Friendly coined the term "fraud by hindsight" in upholding the dismissal of a proposed securities class action. As he explained, it was too simple to look backward with full knowledge of actual events and allege what should have been earlier disclosed by a public corporation in its Security and Exchange Commission (SEC) filings. Because hindsight has twenty/twenty vision, plaintiffs could not fairly "seize [] upon disclosures" in later reports, he ruled, to show what defendants should have disclosed earlier.

Today, a parallel concept – "causation by presumption" – is before the …

Hands Off Policy: Equal Protection And The Contact Sports Exemption Of Title Ix, Jamal Greene

Faculty Scholarship

Before becoming a poster child for gender equity in athletics, Heather Sue Mercer was an all-state place kicker at Yorktown Heights High School in Yorktown Heights, New York (pop. 7,972). She enrolled at Duke University in the fall of 1994 and decided to become the first woman ever to try out for the Duke football team. Initially she failed to make the team as a walk-on, but the following spring she was invited by the seniors on the team to play in the annual Blue-White scrimmage. She ended up kicking a game-winning twenty-eight-yard field goal. Afterwards, Duke head coach Fred …

The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffery Fagan

Faculty Scholarship

Shortly after the U.S. Supreme Court issued its decision in Atkins v. Virginia holding that the execution of mentally retarded persons violated the Eighth Amendment, legal scholars, advocates, and journalists began to speculate that the Court would next turn its attention to the question of the execution of persons who were juveniles – below eighteen years of age – at the time they committed homicide. Following the Atkins decision, four Justices expressed the view that the rationale of Atkins also supported the conclusion that execution of juvenile offenders was unconstitutional. A constitutional test of capital punishment for juveniles was inevitable. …

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen

Faculty Scholarship

This paper argues that the market participant exception to the dormant commerce clause reflects the same concerns that led to the clear statement doctrine for application of general legislation to the operations of state governments. The genius of the Constitution was to make federal law directly applicable to individuals instead of through state governments – this made enforcement easier and avoided confrontation between the state and nation. Confrontation in which the federal authorities order the state to act in a particular way should be a result of consideration of the need to do so. But the dormant commerce clause by …

Law And Letters: A Detailed Examination Of David Hoffman's Life And Career, Bill Sleeman

Faculty Scholarship

David Hoffman (1784-1854) has been cast as America's first legal ethicist and as the founder of one of the nation’s first original methods of legal instruction. While these interpretations of his life are certainly true, Hoffman’s life and career encompassed so much more than that. With few exceptions researchers have focused on Hoffman’s legal career and have left historians to wonder about his other pursuits. This article will review, in individual sections, the many facets of Hoffman's life and career in an effort to provide a more complete picture than has previously existed.

Prosecuting Members Of The U.S. Military For Wartime Environmental Crimes, Eric Talbot Jensen, James J. Teixeira Jr.

Faculty Scholarship

War is inherently damaging to the environment. Though these deleterious actions are often attributed to "states" during times of armed conflict, they are normally the result of military operations conducted by members of the military who are carrying out orders from military superiors. While many have proposed systemic changes that affect how states can or should be held responsible, few have commented on the process of holding individual military personnel or commanders responsible for battlefield acts of environmental damage. This paper argues that there are sufficient laws and regulations in place to hold individuals and commanders in the United States …

The Threat Of Smallpox: Eradicated But Not Erased: A Review Of The Fiscal, Logistical And Legal Obstacles Impacting The Phase I Vaccination Program, Holly L. Myers, Elin Gursky, Georges C. Benjamin, Christopher Gozdor, Michael Greenberger

Faculty Scholarship

Fears that terrorists may have the capabilities and intent to disseminate a variety of biologic agents has once again brought smallpox into the American consciousness. On December 13, 2002, recognizing that the global discontinuation of routine smallpox vaccination over two decades ago had left most Americans unprotected and vulnerable to the ravaging effects of the virus, the President announced a precautionary measure to begin vaccinating teams of emergency responders. The program commenced January 24, 2003. In the ensuing months, public health departments scrambled to meet the goal of vaccinating approximately 500,000 first responders, a protected phalanx that could quickly and …

Using Tort Law To Secure Patient Dignity, Robin Fretwell Wilson

Faculty Scholarship

The practice of using anesthetized patients to teach pelvic exams on female patients in university hospitals has been well documented for years. A 1992 study showed that 37 percent of U.S. and Canadian medical schools allowed students to use anesthetized women without their consent to learn how to perform pelvic exams. Anecdotal accounts in the U.S. confirm that men are not immune from such indignities. Although patients have been unable, thus, far to enforce their own interests and protect their dignity, the tort system may yet succeed in securing the right of patients to decide who touches their bodies and …

Governing The Globalization Of Public Health, Allyn L. Taylor

Faculty Scholarship

There is growing awareness that contemporary globalization has led to the proliferation of cross border determinants of health status and is undermining the capacity of nation states to protect health through domestic action alone. Consequently, globalization is creating a heightened need for new global health governance structures to promote coordinated intergovernmental action. This article seeks to contribute to the emerging discussion on global health governance by examining how globalization and the rising need for new global health governance structures is a driving force behind the expansion of conventional international health law. The article considers whether the present international institutional framework …