Digital Commons Network^™

Stubbornness Of Pretexts, Daniel B. Yeager

Faculty Scholarship

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

Privacy As A Legal Principle Of Identity Maintenance, Jonathan Kahn

Faculty Scholarship

This article considers how existing literature on privacy recognizes, constructs and otherwise implicates something the Anglo-American legal tradition recognizes as 'identity'. Integral to this concern is approaching privacy as a regulative principle for constructing and managing relations between the individual and three primary spheres of engagement: society, the market, and the state. Contemporary analyses of privacy tend to concentrate of how privacy protects the individual from state tyranny or the prying eyes of social busy bodies. Much less attention has been paid, however, to privacy as a principle for demarcating a space beyond the reach of market forces. As privacy …

The Station Nightclub Fire And Federal Jurisdictional Reach: The Multidistrict, Multiparty, Multiforum Jurisdiction Act Of 2002, Peter Adomeit

Faculty Scholarship

The Multidistrict, Multiparty, Multiforum Jurisdiction Act of 2002 has great potential for expediting The Station fire cases. The object of the Act is to place all of the cases from a mass disaster before a single judge, who can supervise discovery, then try the issue of liability, and either try or remand the issue of damages. How this new procedural tool will function is uncertain. The Act consolidates the power in one court to either urge the parties to accept a global settlement, or send the unresolved cases to trial. There are many unanswered questions. It is up to judges …

Proxies For Loyalty In Constitutional Immigration Law: Citizenship And Race After September 11, Victor C. Romero

Faculty Scholarship

The purpose of this article is to share some thoughts about using citizenship and race as proxies for loyalty in constitutional immigration discourse within two contexts: one historical and one current. The current context is the profiling of Muslim and Arab immigrants post-September 11, and the historical context is the distinction the Constitution draws between birthright and naturalized citizens in the Presidential Eligibility Clause.

Midwifery: Strategies On The Road To Universal Legalization, Laura Hermer

Faculty Scholarship

Multiple studies have shown that direct-entry midwifery is just as safe, if not safer than, medical care in low-risk childbirth. Most births using direct-entry midwives require fewer interventions than those attended by physicians, yet yield excellent results. The results of these studies indicate that we should return to midwifery for normal births, rather than continuing to rely primarily on medicine. This option, however, has been significantly curtailed by many state legislatures and courts, despite decades of attempts to make incursions on the traditional paradigm of hospital births attended by obstetricians. As a result, where midwifery is more readily available, it …

Making Markets: Network Effects And The Role Of Law In The Creation Of Strong Securities Markets, Robert B. Ahdieh

Faculty Scholarship

As Russia and other formerly socialist states construct market economies, the appearance of strong securities markets remains an unfulfilled expectation. Notwithstanding broad privatization of state-owned enterprises and the elimination of industrial subsidies - essential precursors to demand for capital-raising securities markets - stock markets in Central and Eastern Europe remain illiquid, inefficient, and unreliable.

Strong securities markets do not, it seems, neatly follow from the welfare-maximizing behavior of individuals and institutions. Nor can the appearance of securities markets be effectively dictated by government decree. Post-communist securities market transition therefore presents a puzzle: Do markets emerge, or must they be created? …

The Mechanisms Of Market Efficiency Twenty Years Later: The Hindsight Bias, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Twenty years ago we published a paper, "The Mechanisms of Market Efficiency," that sought to describe the institutional underpinnings of price formation in the securities market. Since that time, financial economics has moved forward on many fronts. The sub-discipline of behavioral finance has struggled to bring yet more descriptive realism to the study of financial markets. Two important questions are (1) how much has this new discipline changed our understanding of the efficiency and nature of the institutional mechanisms that set price in financial markets; and (2) how far does this discipline carry novel implications for the regulation of financial …

Devolution And Discrimination, Victor C. Romero

Faculty Scholarship

This essay explores the issue of whether discrimination against two historically disadvantaged groups - racial minorities, on the one hand, and gays and lesbians, on the other - might increase or decrease should the federal immigration power devolve to the individual states. I conclude that while the lack of uniformity that accompanies immigration law devolution might lead to undesirable results in welfare reform and criminal law enforcement, and would likely not stem the tide of racism, it might lead to the opening of opportunities for gay Americans to petition their binational partners for immigration benefits. Such a development would turn …

Towards A New Scholarship For Equal Justice, James S. Liebman

Faculty Scholarship

Over the last thirty years, the legal academy has turned a cold shoulder to the subject matter of this symposium: scholarship for equal justice. I am here to suggest that a thaw may be on the way. By scholarship for equal justice – as distinguished from scholarship about that topic – I mean academic work undertaken for the purpose of improving outcomes for individuals and members of groups who have been systematically held back by their race, sex, poverty, or any other basis for rationing success that our legal system treats with suspicion. With reference to some of my own …

Mixing Metaphors: Voting, Dollars, And Campaign Finance Reform (Review Essay), Guy-Uriel Charles

Faculty Scholarship

Reviewing, Bruce Ackerman & Ian Ayers, Voting with Dollars: A New Paradigm for Campaign Finance (2002)

Jurors As Statutory Interpreters, Lawrence Solan

Faculty Scholarship

No abstract provided.

Afterword: The Perils And Pleasure Of Activist Scholarship, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Domestic Violence In Legal Education And Legal Practice: A Dialogue Between Professors And Practitioners, Stacy Caplow

Faculty Scholarship

No abstract provided.

Why The Model Penal Code's Sexual Offense Provisions Should Be Pulled And Replaced, Deborah W. Denno

Faculty Scholarship

By all accounts, the Model Penal Code is enormously respected and influential. Yet, relatively soon after the Code's 1962 publication, the Code's sexual offense provisions and even its 1980 revised Commentaries were already considered outdated. The rapid onslaught of the sexual and feminist revolutions of the 1960s and 1970s brought an intense momentum to change rape laws that the Code had, in part, either mirrored or inspired. Only because of the passage of time, the Code's sexual offense provisions and Commentaries now misrepresent the progressive thinking of the Code's reporters. For these reasons, I think the Model Penal Code's sexual …

Protecting Transgender Families: Strategies For Advocates, Taylor Flynn

Faculty Scholarship

For a transgender (trans) man or woman, what begins as the dissolution of a relationship may be transformed into a public nightmare in which the individual is forced to defend the authenticity of his or her gender in the face of relentless, brutal, and humiliating questions about the most intimate details of personal anatomy and sexual practices. This Article discusses this reality in the case of Michael Kantaras, a transsexual man in Clearwater, Florida in 2002.

Bringing Out The Big Guns: The Usa Patriot Act, Money Laundering, And The War On Terrorism, Eric J. Gouvin

Faculty Scholarship

This Article addresses the question of whether the money laundering provisions in the Patriot Act will be effective tools in the effort to intercept terrorist financing to prevent future attacks like those suffered on September 11, 2001, or whether the legislation is instead the modern equivalent of a big noisy anti-aircraft gun -- psychologically useful for showing that something is being done, but not very effective in actually doing the task. This Article concludes that the Act's money laundering provisions will not be effective in intercepting terrorist financing. It reaches that conclusion after examining the current state of United States …

For Eugene Rostow, Philip Chase Bobbitt

Faculty Scholarship

The two-handed saw is a foresters’ instrument that two men use, one at each end, sawing in reciprocating rhythm. The blade of the best two-handed saws balances a sharpened stiffness with a shimmering flexion; its use requires individual strength and skill at cooperation. Because Gene Rostow too combined these opposing qualities – indeed had them in abundance – it is especially noteworthy that one day, using such a saw as a young man in New England, he severely injured his back, keeping him out of active service in World War II and causing recurrent difficulties throughout his gallant life.

Was …

Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan

Faculty Scholarship

The phenomenal growth of drug courts and other forms of "problem-solving" courts has followed a pattern that is characteristic of many successful innovations: An individual or small group has or stumbles upon a new idea; the idea is put into practice and appears to work; a small number of other actors adopt the innovation and have similar experiences; if there is great demand for the innovation – for example, because it responds to a widely-perceived crisis or satisfies an institutional need and resolves tensions within organizations that adopt it – the innovation rapidly diffuses through the networks in which the …

Blaming Youth, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

In March of 2001, a fourteen-year-old Florida boy named Lionel Tate was sentenced to life in prison without parole for killing six-year-old Tiffany Eunick during a wrestling match that took place when Lionel was twelve years old. Lionel was convicted of first degree murder on the ground that the killing was the result of aggravated child abuse, a crime that contemplates injury of a child by an adult caretaker. His conviction and sentence have prompted much debate and discussion – about his case and, more generally, about the criminal punishment of young offenders. Although the verdict and Lionel's sentence received …

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …

Learning From Conflict: Reflections On Teaching About Race And Gender, Susan Sturm, Lani Guinier

Faculty Scholarship

In 1992 had been teaching for four years at the University of Pennsylvania Law School. I taught voting rights and criminal procedure, subjects related to what I had done as a litigator. Preparing for class meant reading many of the same cases I had read preparing for trial. Some were even cases I had tried. Teaching offered me a fresh chance to read those cases with new interest. I could see the subtle linkages between cases that I had not previously noticed. From the distance of the academy, I observed the evolution of the doctrine without feeling overcome by the …

Equality And The Forms Of Justice, Susan Sturm

Faculty Scholarship

Justice and equality are simultaneously noble and messy aspirations for law. They inspire and demand collective striving toward principle, through the unflinching comparison of the "is" and the "ought." Yet, law operates in the world of the practical, tethered to the realities of dispute processing and implementation. The work of many great legal scholars and activists occupies this unstable space between principle and practice. Owen Fiss is one such scholar, attempting to straddle the world of the here-and-now and the imagined and then deliberately constructed future, the contours of which have been established during the founding moments of our constitutional …

Where Will Women Lawyers Be In 25 Years?, Frances E. Bivens, Joan Guggenheimer, Nancy Northrup, Susan Sturm, Judith Reinhardt Thoyer

Faculty Scholarship

Barbara Black said in her unbelievably moving remarks that Columbia has opened up its institutional heart to women. I thought that was a wonderful expression and, as a relative newcomer to Columbia, I have to agree. What does this mean? It means that women have become part of the cultural fabric of the Columbia Law School. We are not an accent. We are not an accessory. We are woven into the day-to-day fabric of the school. And this means being able both to participate in the old traditions and to reshape them to make some new traditions and then have …

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Faculty Scholarship

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …

A Prescription For Gender: How Medical Professionals Can Help Secure Equality For Transgender People, Jennifer L. Levi

Faculty Scholarship

Transgender people have made tremendous legal gains in the last several years. We live in a period of rapid social change, hopefully approaching a time when transgender individuals and our families enjoy the same legal rights and privileges afforded to other members of society. However, we are not there yet. This essay discusses the role medical professionals must play if transgender people are to achieve full humanity in light of legal developments in the areas of employment and family law. Medical professionals are at the heart of directing and implementing policies that have an enormous effect on the lives of …

Transgender Jurisprudence: Dysphoric Bodies Of Law, Jennifer L. Levi

Faculty Scholarship

This is a book review of Andrew Sharpe's "Transgender Jurisprudence: Dysphoric Bodies of Law." The Author discusses the contribution Sharpe makes to the transgender rights movement as invaluable for two reasons. First, it provides the first in-depth and full-length comprehensive treatment of the topic of transgender jurisprudence, and emerges as the foundational work by which others will be measured. Second, it exposes the homophobia underlying many of the key decisions, particularly in the area of marriage and family law, and provides an important link between the lesbian, gay, bisexual, and transgender movements which should not be ignored by activists from …

Who Is Andrea Yates? A Short Story About Insanity, Deborah W. Denno

Faculty Scholarship

On June 20, 2001, Andrea Yates drowned her four children in a bathtub. At Andrea’s trial, in Harris County, Texas, the prosecution’s star expert, Patrick Dietz, appeared particularly adept at persuading the jury to accept the prosecution’s assertion that Andrea was sane and acting intentionally when she killed her children. This Article analyzes the problematic aspects of Dietz's testimony in an effort to contribute some balance to the Andrea Yates story. Despite the long history of expert witnesses in criminal trials, the justice system should question the fairness and efficacy of such an unregulated storytelling process. Part I of this …

When Code Isn't Law, Tim Wu

Faculty Scholarship

When the Supreme Court upheld extended copyright terms in Eldred v. Ascroft, many Internet activists called for renewed political action in the form of appeals to Congress or even a campaign to amend the Constitution. But others suggested a very different course: They argued that it would be wiser to forgo institutions controlled by the powers of the past, and to return instead to the keyboard to write the next generation of "lawbusting" code. In the words of one observer, "tech people are probably better off spending their energy writing code than being part of the political process" because …

Excuse And Justification In The Law Of Fair Use: Transaction Costs Have Always Been Only Part Of The Story, Wendy J. Gordon

Faculty Scholarship

In American copyright law, the doctrine of "fair use" has long been problematic. Every plausible litmus test that might simplify the "fair use" inquiry has proven inadequate, and copyright commentators have long sought an algorithm or heuristic to lend predictability and conceptual coherence to the doctrine. Twenty years ago, I published in this Journal an article entitled Fair Use as Market Failure, which suggested that the key to understanding the protean terms of "fair use" could best be found in the notion of market failure. That 1982 article has been often misapplied, by both courts and commentators. I am …

The Child Citizenship Act And The Family Reunification Act: Valuing The Citizen Child As Well As The Citizen Parent, Victor C. Romero

Faculty Scholarship

Leading civil rights advocates today lament the degree to which current immigration law fails to maintain family unity. The recent passage of the Child Citizenship Act of 2000 is a rare bipartisan step in the right direction because it grants automatic citizenship to foreign-born children of U.S. citizens upon receipt of their permanent resident status and finalization of their adoption. Congress now has before it the Family Reunification Act of 2001, which aims to restore certain procedural safeguards relaxed in 1996 to ensure that foreign-born parents are not summarily separated from their children, many of whom may be U.S. citizens. …