Digital Commons Network^™

A Process Of Denial: Bork And Post-Modern Conservatism, James Boyle

Faculty Scholarship

No abstract provided.

Simple Justice: Humanitarian Law As A Defense To Deportation, Jennifer Moore

Faculty Scholarship

Each year, thousands of persons fleeing situations of military conflict in their home countries are denied refuge in the United States. These denials result in part from an asylum adjudication process that requires applicants to show that they are persecuted on an individualized basis, rather than that they fear generalized conditions of violence. Jennifer Moore explores the development of the humanitarian law defense to deportation, which seeks to compel immigration courts to recognize and apply international humanitarian law. Part I describes the evolution of the humanitarian law argument in immigration courts. Part II considers the relationship between humanitarian law and …

Pyrrhic Victories And Glorious Defeats: Why Defendants Are Winning And Plaintiffs Are Losing The Struggle Over Actual Malice And Fictionalized Quotation, Richard A. Gonzales

Faculty Scholarship

This article reviews Masson v. New Yorker Magazine, a case of fabricated quotations. The article looks first at the legal background and Supreme Court's development of the actual malice standard. An analysis of the problem through journalistic ethics and investigation of the difficulties confronting libel plaintiffs will follow. Finally, the comment explores the misquotation problem from both a legal and a journalistic perspective.

Voice, Not Choice, James S. Liebman

Faculty Scholarship

In John Chubb and Terry Moe's book, choice is hot; voice is not. As influential as their book has become in current policy debates, however, its data and reasoning may support policies the reverse of those that the authors and their "New Paradigm" disciples propose. In this review, voice is hot; choice is not.

International Human Rights Law In Soviet And American Courts, Lori Fisler Damrosch

Faculty Scholarship

To what extent should domestic courts apply international law – specifically the international law of human rights? I would like to examine this question with reference to two very different states: the Union of Soviet Socialist Republics and the United States. For quite distinct reasons, neither of the two has yet fully embraced the idea of direct application in national tribunals of the body of international law that regulates the relationship between human beings and their own governments. As the post-Cold War era unfolds, it is time to ask whether either or both of these erstwhile adversaries might finally be …

Unlimited Liability And Law Firm Organization: Tax Factors And The Direction Of Causation, Ronald J. Gilson

Faculty Scholarship

In a recent issue of this Journal, Carr and Mathewson (1988) test a model of the impact of limited and unlimited liability regimes on the nature of firms by comparing the performance of law firms operated as partnerships and sole proprietorships (and therefore subject to unlimited liability) with that of law firms operated as corporations (and therefore subject to limited liability).

Faculty Resolution, Professor Alfred Hill, Harold L. Korn, Henry Paul Monaghan

Faculty Scholarship

Alfred Hill is everything a law professor should be. He has mastered the two areas which are most important for a law teacher's success. These are classroom performance and legal scholarship. Few of us excel in either one of these areas. The fact that Al Hill excels in both makes him truly remarkable. We of the Columbia Law School Faculty are singularly blessed to have had him in our midst for more than twenty years.

Al Hill's excellence as a teacher is best demonstrated by the enthusiastic comments of his students. He has taught many courses; his current assignments being …

Recovery For Pure Economic Loss In Tort: Another Look At Robins Dry Dock V. Flint, Victor P. Goldberg

Faculty Scholarship

In Robins Dry Dock and Repair Co. v. Flint, the Supreme Court laid down the general proposition that claims for pure economic loss are not recoverable in tort. Although courts have sometimes ignored or distinguished Robins, its holding is still a central feature of tort law. In a recent en bane decision regarding claims by those injured by a chemical spill in the Mississippi River, the Fifth Circuit engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law.

The Robins rule is overbroad, lumping together a number of …

Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr.

Faculty Scholarship

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third, …

The Trouble With Legal Ethics, William H. Simon

Faculty Scholarship

Legal ethics is a disappointing subject. From afar, it seems exciting; it promises to engage the central normative commitments that make lawyering a profession and that account for much of the nonpecuniary appeal of the lawyer's role. Thus, when people see public spirit among lawyers threatened by commercial self-seeking, they often prescribe increased attention to the teaching and -discussion of legal ethics as a remedy.

But close up, legal ethics usually turns out to be dull and dispiriting. At most law schools, students find the course in legal ethics or professional responsibility boring and insubstantial, and faculty dread having to …

Plenary Session: The U.S. Constitution In Its Third Century: Foreign Affairs – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Our Moderator has asked us to look ahead into the Constitution's third century and anticipate the emerging issues. I believe the changes in the field that I have selected, international organizations and institutions, are likely to be dramatic, perhaps more so than the more incremental changes in the areas being addressed by my copanelists. With all respect to our Moderator, I would like to take note of the rather modest treatment given to international organizations in the leading work on foreign affairs and the Constitution published by Louis Henkin in 1972. I hope he will forgive me if I suggest …

Constitutional Control Of Military Actions: A Comparative Dimension, Lori Fisler Damrosch

Faculty Scholarship

The purpose of this essay is to examine some aspects of the legal framework for military activity in the internal law of some of the world's most powerful states. The international community has a major stake in the constitutional evolution of member states as regards the authority to decide to go to war. That stake – or those interests, since they are plural (and hold some possibility for contradiction) – can be identified as follows:

(1) to strengthen trends toward constitutionalism generally, by which I mean the concept of governance based on law;
(2) to strengthen trends toward civilian control …

Gestational Surrogacy And The Health Care Provider: Put Part Of The "Ivf Genie" Back Into The Bottle, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.¹ In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. ² Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, ³ thus settling a controversial …

Book Review - Reviewing John Eidsmoe, Christianity And The Constitution: The Faith Of Our Founding Fathers (1987), Stephen R. Alton

Faculty Scholarship

Book Review Extract:

Judging by its title, John Eidsmoe's Christianity and the Constitution: The Faith of Our Founding Fathers, appears to promise an historical look at the religious beliefs and backgrounds of America's founders. It does that - and more-with mixed results. To be sure, there is some good in this book: to the extent that it sticks to its nominal purpose and attempts to document the religious beliefs of some of this nation's founding fathers, Eidsmoe's work is useful.

Unfortunately, both the author's scholarship and his motives in writing this book are questionable. His scholarship suffers from his tendency …

Stellar Populations In Shell Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

UBV surface photometry of the shell galaxies Arp 230, NGC 7010, and Arp 223 is presented. We find all to be the result of mergers. In Arp 230, the merger of two spirals reduced a burst of star formation which has declined in strength since the collision. The remnant seems likely to become elliptical. NGC 7010 has very red shells, perhaps redder than the galaxy itself. Evolution of the stellar content of these shells may be important. Arp 223 has shell colors which are slightly bluer than thee main body of the galaxy, consistent with an origin in an Sb. …

Book Review - Reviewing S. Prakash Sinha, What Is Law? (1989), Stephen R. Alton

Faculty Scholarship

Book Review Extract:

The title of S.P. Sinha's book, What Is Law?, is somewhat deceptive, for the author ambitiously tries to do more than merely define the concept of law in well under 300 pages. After the introductory historical and philosophical overview of his initial chapter, Sinha uses the balance of his book to summarize the major theories of law, including how law arises, how it is applied, and why it is important in society. The work is less of an original attempt by its writer to answer the question posed by the title than it is an effort to …

Public Remedies For Private Wrongs: Rethinking The Title Vii Back Pay Remedy, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Academic Freedom: A Bibliography, Janet Sinder

Faculty Scholarship

No abstract provided.

Conflict Of Laws (1990), Sharon N. Freytag, James P. George, Michelle E. Mccoy

Faculty Scholarship

Conflicts of laws occur when foreign elements appear in a lawsuit. Nonresident litigants, incidents in sister states or foreign countries, and lawsuits from other jurisdictions represent foreign elements that may create problems of judicial jurisdiction, choice of law, or recognition of foreign judgments, respectively. This Article reviews Texas conflicts of law during the Survey period from late 1988 through 1989, discussing cases from Texas state and federal courts. The Article excludes cases involving federal-state conflicts, criminal law, intrastate matters such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within …

Foundations Of Rights Jurisprudence In Israel: Chief Justice Agranat's Legacy, Pnina Lahav

Faculty Scholarship

"Liberty of the individual is a things of the past, or the future, in Palestine", wrote Bernard Joseph, a distinguished member of Israel's "government in the making" in 1948, shortly before Israel was inaugurated as a sovereign state. Joseph's "present" was the dusk of British rule in Palestine. Draconian Defence (Emergency) Regulations suspended conventional liberties ordinary westerners were accustomed to expect and turned Palestine into a police state.

New Fda Drug Approval Policies And Hiv Vaccine Development, Wendy K. Mariner

Faculty Scholarship

Conducted a study of Food and Drug Administration (FDA) law and policy including interviews with FDA officials in the Center of Biologics Evaluation and Research and the Office of the General Counsel. Suggests that the new FDA drug review policies do not fit vaccines. Instead, the nature of vaccines, and HIV vaccines in particular, argues for adherence to a more rigorous form of review. (JLN)

The Maryland Context Of Dred Scott: The Decline In The Legal Status Of Maryland Free Blacks 1776-1810, David S. Bogen

Faculty Scholarship

No abstract provided.

Constitutional Protection Of Freedom Of Expression In The United States As It Affects Defamation Law, Oscar S. Gray

Faculty Scholarship

No abstract provided.

Gender Bias In The Classrom, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Gender Bias In The Courts: Social Change Strategies, Karen Czapanskiy

Faculty Scholarship

No abstract provided.

Women And Aids - Racism, Sexism, And Classism, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Two Life Stories: Reflections Of One Black Woman Law Professor, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Reflecting A King's Wisdom: Bridge-Building And Legal Analysis, Randy Lee

Faculty Scholarship

No abstract provided.

"Portrait Of A Lady": The Woman Lawyer In The 1980s, Stacy Caplow, Shira A. Scheindlin

Faculty Scholarship

No abstract provided.