Digital Commons Network^™

A Government For Our Time? Business Improvement Districts And Urban Governance, Richard Briffault

Faculty Scholarship

The emergence and rapid spread of business improvement districts ("BIDs") is one of the most important recent developments in American cities. BIDs have been controversial, with both supporters and proponents viewing the districts as part of a trend toward the privatization of the public sector. By examining the legal and political structures that determine BID formation, functions, finances and governance, this Article determines that BIDs are not private entities but are, instead, a distinctive hybrid of public and private elements. Moreover, although the particular fusion of public and private institutions, values and concerns embodied in the BID is unique, Professor …

Lifetime Employment: Labor Peace And The Evolution Of Japanese Corporate Governance, Ronald J. Gilson, Mark J. Roe

Faculty Scholarship

In Japan, large firms' relationships with their employees differ from those prevailing in large American firms. Large Japanese firms guarantee many employees lifetime employment, and the firms' boards consist of insider employees. Neither relationship is common in the United States.

Japanese lifetime employment is said to encourage firms and employees to invest in human capital. We examine the reported benefits of the firm's promise of lifetime employment, but conclude that it is no more than peripheral to human capital investments. Rather, the "dark" side of Japanese labor practice – constricting the external labor market – likely yielded the human capital …

The Place Of Victims In The Theory Of Retribution, George P. Fletcher

Faculty Scholarship

Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment.

Admittedly, victims and their sentiments …

Refocusing The Burden Of Proof In Criminal Cases: Some Doubt About Reasonable Doubt, Lawrence Solan

Faculty Scholarship

No abstract provided.

Then Technological Family: What's New And What's Not, Marsha Garrison

Faculty Scholarship

No abstract provided.

Evolutionary Biology And Rape, Deborah W. Denno

Faculty Scholarship

This article queries whether an evolutionary analysis of rape may be more compelling in explaining a rape victim's fear than a defendant's sexual aggression. Such a victim-oriented approach could help legal decisionmakers assess the reasonableness of the victim's fear when determining whether sex was forced or threatened. These ideas are explored in the context of two well-known rape trials, State v. Rusk and State v. Smith. This article concludes that evolutionary biology can contribute to an understanding of rape. However, the supposed evolutionary underpinnings of male sexual aggression should not justify such behavior or render it acceptable as a criminal …

The Uniqueness Of Federal Prosecutors, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

No abstract provided.

A Comparative Analysis Of Women's Issues: Toward A Contextualized Approach, Antoinette M. Sedillo Lopez

Faculty Scholarship

"This Article proposes a methodology for comparative analysis of women's rights using insights from critical race theory and feminism. Comparative analysis by a Western scholar must reconcile a perspective developed in the United States with respect for another culture. In discussing women's rights, lawyers, judges, students and sociologists have justified certain women's situations as an inherent aspect of culture. For example, traditional "female genital surgery" has been defended as a "mere bodily mutilation" that is the "sine qua non of the whole teaching of tribal law, religion, and morality." In Mexico, "machismo" has been justified as an immutable characteristic of …

To Strike Or Not To Strike (Review Of Julius Getman, The Betrayal Of Local 14: Paperworkers, Politics, And Permanent Replacements), James J. Brudney

Faculty Scholarship

This is a book review of Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements (1998)

Introduction, Wendy J. Gordon

Faculty Scholarship

Ralph Sharp Brown crossed out the "Junior" that followed his name after his father died. In explanation of the hand-altered stationery, he said (if my recollection holds), "I'm the only one left now." Now, after Ralph's death, there may remain no Ralph Sharp Browns. But there are many law teachers who continue to wage the campaign that Ralph made his life work: to save an interdependent society from unnecessary and stagnating restraints on liberty. In the intellectual property area, Ralph sought to teach us that it can be both right and necessary to give individuals the liberty to "reap without …

Proceedings Of The 1999 Annual Meeting, Association Of American Law Schools Section On Employment Discrimination Law: Is There A Disconnect Between Eeo Law And The Workplace?, Maria O'Brien, Douglas D. Scherer, James Sharf, Richard Seymour, Paulette Caldwell

Faculty Scholarship

(The following is an edited transcript of the proceedings of the section on Employment Discrimination Law at the AALS Annual Meeting, New Orleans, Louisiana, January 9, 1999.)

DOUGLAS D. SCHERER*: Good morning. The program description asks the question, "Is there a disconnect between existing EEO jurisprudence and the realities of the workplace and workforce of the Twenty-First Century?" Societal disapproval of employment discrimination is reflected in federal EEO laws that have been enacted during the last thirty-six years and in court interpretations of these laws. The goals of these laws are fairly clear. It is less clear how well these …

Taking Future Claims Seriously: Future Claims And Successor Liability In Bankruptcy, Frederick Tung

Faculty Scholarship

Treatment of contingent tort liabilities when a business is sold presents a particular challenge for corporate and bankruptcy law. In this article, I focus on the precarious position of future tort claimants-those who may be harmed by a manufacturer's defective product after the manufacturer has sold its business and disappeared. By the time the future claimant's injury occurs, she may be left with no means of recovery. While the article focuses primarily on the bankruptcy sale context, a discussion of the nonbankruptcy context provides important background.

In the article, I make two claims. First, I address recent proposals suggesting that …

Toward A Formative Project Of Securing Freedom And Equality, Linda C. Mcclain

Faculty Scholarship

This Symposium offers an occasion to pursue two important tasks: (1) identifying normative and constitutional foundations for an affimnative governmental responsibility to engage in a "formative project" that would foster persons' capacities for democratic and personal self-government;' and (2) exploring the mix of normative and empirical inquiries necessary to shape the proper goals and parameters of such a project. These tasks are relevant to my larger project of attempting to develop a synthetic, or feminist and liberal, normative account of rights, responsibilities, and governmental promotion of good, self-governing lives.2 That account argues for governmental responsibility to foster the preconditions for …

Medical Ethics And Human Rights: Legacies Of Nuremberg, George J. Annas, Michael A. Grodin

Faculty Scholarship

Many of our most important human rights documents are the product of the world's horror during the carnage of World War II. The broadest and most powerful declaration of human rights, the Universal Declaration of Human Rights, was adopted by the membership of the new United Nations in 1948. But there are also much more specific statements of the world's aspirations for all of its inhabitants. August 1997 marked the 50th anniversary of the conclusion of the trial of Nazi physicians at Nuremberg, a trial which has been variously designated as the "Doctors' Trial" and the "Medical Case."² In …

Compensation For Fear Of Contracting Asbestosã¢Â‚¬Â€Œrelated Diseases: Critical Reflections On An Important U.S. Supreme Court Opinion And Its Relevance For Europe, David I. Levine, Carel J. Stolker

Faculty Scholarship

No abstract provided.

Domestic Violence And Children: Analysis And Recommendations, Lois A. Weithorn, Lucy S. Carter, Richard E. Behrman

Faculty Scholarship

No abstract provided.

European Perspectives On The Accused As A Source Of Testimonial Evidence, Gordon Van Kessel

Faculty Scholarship

No abstract provided.

Secured Credit And Software Financing, Ronald J. Mann

Faculty Scholarship

Software is a relatively new type of business asset, but already has taken on a central role in all sectors of the economy; when any asset brings such a crucial value to businesses, the desire for lending based on that asset cannot be far behind. Unfortunately, the existing academic literature contains no sustained examination of software-related lending.

Because the software industry is in its infancy, the existing empirical evidence is inadequate to support any understanding of it. Accordingly, I undertook a series of twenty-nine informal interviews with industry participants, including lenders in both the Massachusetts Route 128 corridor and Silicon …

Context And Culpability In Adolescent Crime, Jeffrey A. Fagan

Faculty Scholarship

This Essay merges the perspectives of context and decision-making to assess the role of contextual factors in the unfolding of violent events by adolescents. The framework for decision-making assumes that context is a dynamic rather than a static feature of the cognitive landscape. Decisions by adolescents to engage in crime or violence are shaped through interactions with features of their environments, are contingent on responses emanating from that context, and are filtered through the unique lens of adolescence. Rather than assuming discrete and independent components in a decision framework, this Essay assumes that decisions are the product of interactions across …

Punishment Or Treatment For Adolescent Offenders: Therapeutic Integrity And The Paradoxical Effects Of Punishment, Jeffrey A. Fagan

Faculty Scholarship

Throughout much of its history, the American juvenile court maintained a goal of rehabilitation of the individual, and placed custody and punishment as secondary or ancillary goals in the pursuit of "remaking the child's character and lifestyle." To its founders, the development of a separate juvenile court reflected a fundamental distinction between sanctions based on characteristics of the offender, and punishment based on the offense. Juvenile court dispositions were designed to determine why the child was in court, and what could be done to avoid future appearances. Judge Julian Mack's classic statement of the original theory of the juvenile court …

Three Limitations Of Deliberative Democracy: Identity Politics, Bad Faith, And Indeterminancy, William H. Simon

Faculty Scholarship

In Democracy and Disagreement, Amy Gutmann and Dennis Thompson elaborate a liberal political style designed to complement the substantive liberalism they and others have developed in recent years. The style they portray is deliberative, and its essence is the appeal to principle.

Law And The Ideal Citizen, Lee C. Bollinger

Faculty Scholarship

The theme identified for this lecture series is the subject of responsibility. I assume Washington and Lee has selected that topic out of a sense that it has not received sufficient attention, as compared, for example, to the subject of "rights." I select "rights" as the counter-example because we often hear of the two in tandem – "rights and responsibilities." As such, the concept of responsibility connotes a sense of obligation as to what is due from us to others and to the community. It is, in that sense, easier to be in favor of rights than it is of …

The Nuttiness Of Divorce, Thomas W. Merrill

Faculty Scholarship

The erratic, emotional "nuttiness" of divorce is predictable. Rest assured, however, you are not crazy. You are merely responding to the temporary emotional upheaval in your life. To help you better understand what you are experiencing, we have put together a brief explanation of the psychological stages or phases that accompany the legal process of divorce.

Siegecraft And Surrender: The Law And Strategy Of Cities And Targets, Matthew C. Waxman

Faculty Scholarship

The razing of Jericho; the sack of Magdeburg; the siege of Leningrad; the fire-bombing of Dresden. Ever since civilizations began organizing permanent economic settlements, cities and towns have occupied a central role in warfare and in our images of war." On almost every page of historical writings," remarked Grotius, "you may find accounts of the destruction of whole cities, or the leveling of walls to the ground, the devastation of fields, and conflagrations." A driving force behind the evolution and development of cities has been defense and security. As a result, how-ever, cities have become a primary target or object …

Foreword, Elizabeth S. Scott

Faculty Scholarship

In November 1998, the interdisciplinary Center for Children, families and the Law at the University of Virginia sponsored a conference on Youth Violence and Juvenile Justice Reform. The conference brought together an extraordinary group of experts from the academic disciplines of law, criminology and psychology. Before an audience made up of researchers, students, policymakers, and practitioners in the field of juvenile justice, these experts analyzed legal policy toward juvenile crime from a variety of disciplinary and methodological perspectives. The articles in this important symposium issue of the Virginia Journal of Social Policy & the Law are based on the papers …

Virtuous Lying: A Critique Of Quasi-Categorical Moralism, William H. Simon

Faculty Scholarship

Popular and professional moralists have a tendency to over-condemn lying. This Article is a critique of that tendency and the more general outlook it exemplifies, which I call Quasi-Categorical Moralism. I begin with an illustration from my own experience of morally appropriate lying that is condemned by the legal profession's ethics norms. I proceed to a critical examination of the arguments against lying in what is perhaps the best known contemporary work on professional ethics – Sissela Bok's Lying. I then explore the more sympathetic treatment of lying in a broad range of literary and philosophical works typically ignored …

Is The Shrink's Role Shrinking? The Ambiguity Of Federal Rule Of Criminal Procedure 12.2 Concerning Government Psychiatric Testimony In Negativing Cases, R. Gregory Cochran

Faculty Scholarship

No abstract provided.

Reading Justice Brennan: Is There A "Right" To Dissent?, Rory K. Little

Faculty Scholarship

No abstract provided.

Punitive Damages And The Economic Theory Of Penalties, Keith N. Hylton

Faculty Scholarship

Deterrence has long been considered one of the most important goals of both tort law and criminal law. However, there are different notions of deterrence advanced in the literature in these areas. The traditional notion of deterrence in the criminal punishment literature is one of "complete deterrence," of stopping offenders from committing offensive acts. Generally, complete deterrence is accomplished by eliminating the prospect of gain on the part of the offender. The alternative, more recent notion of deterrence, largely observed in the torts literature, is that of "appropriate or optimal deterrence," which implies deterring offensive conduct only up to the …

Creating True Believers: Putting Macro Theory Into Practice, Minna J. Kotkin

Faculty Scholarship

No abstract provided.