Digital Commons Network^™

Introduction, George A. Bermann

Faculty Scholarship

Who would have imagined even fifteen years ago that a notion of "EU citizenship" would come to occupy center-stage in the arena of EU legal developments and widely permeate fields of EU law to which citizenship at the EU level long appeared to have little to say? By contrast, Member State citizenship lay at the heart of things from the start, as rights and obligations alike seemed to turn, at least largely, on whether an interested person bore the citizenship or nationality of a Member State.

The Un Charter – A Global Constitution?, Michael W. Doyle

Faculty Scholarship

Is the UN Charter a constitution? Answering that question depends on what we mean by a constitution and to what alternative we are contrasting a constitution.

If the relevant contrast is to the U.S. Constitution – the constitution of a sovereign state – the answer is clearly no. The United Nations was not intended to create a world state. As the Charter's preamble announces, it was created for ambitious but specific purposes: “to save succeeding generations from the scourge of war,” to “reaffirm faith in fundamental human rights,” to “establish conditions under which justice and respect for the obligations arising …

Explaining The Sioux Military Commission Of 1862, Maeve Glass

Faculty Scholarship

Part I of this Note describes current scholarship on the history of military commissions and identifies a gap in the prevailing narrative, namely, an explanation for why the military favored a legal process over collective reprisals or summary executions. Part II seeks to address this gap, by examining the circumstances in which the military convened the commission and the context in which President Abraham Lincoln approved it. Part III concludes that this historical perspective helps clarify the original role of military commissions as articulated in the Supreme Court case of Hamdan v. Rumsfeld and calls into question whether an institution …

Can State Health Reform Initiatives Achieve Universal Coverage: Lessons From California’S Recent Failed Experiment, Susan A. Channick

Faculty Scholarship

This article is about the struggle toward health care reform. It looks at the mandated health care insurance model as well as the experiences of Massachusetts and California.

Pitfalls Ahead: A Manifesto For The Training Of Lawyers, Anita Bernstein

Faculty Scholarship

No abstract provided.

Website Proprietorship And Online Harassment, Nancy Kim

Faculty Scholarship

Although harassment and bullying have always existed, when such behavior is conducted online, the consequences can be uniquely devastating. The anonymity of harassers, the ease of widespread digital dissemination, and the inability to contain and/or eliminate online information can aggravate the nature of harassment on the Internet. Furthermore, section 230 of the Communications Decency Act provides Web site sponsors with immunity for content posted by others and no incentive to remove offending content.

Given the unique nature of online harassment, ex post punitive measures are inadequate to redress grievances. In this Article, I propose the imposition of proprietorship liability upon …

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …

Happy Families? Translating Positive Psychology Into Family Law, Clare Huntington

Faculty Scholarship

Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …

A Comparative Look At Domestic Enforcement Of International Tribunal Judgments, Lori Fisler Damrosch

Faculty Scholarship

Problems of compliance with international arbitral and judicial decisions have been with us for as long as such tribunals have existed. In general, the consensual foundations for the jurisdiction of international tribunals have ensured that the parties were in principle willing to have their disputes resolved by the tribunal and thus were usually prepared to carry out the resulting award or judgment. Commentators on international arbitration generally characterize the compliance record as favorable.

Occasions when states refuse to carry out arbitral awards are rare, but when they do occur, states have sometimes asserted the nullity of the award on the …

Answering The Millennium Call For The Right To Maternal Health: The Need To Eliminate User Fees, Margaux J. Hall, Aziza Ahmed, Stephanie E. Swanson

Faculty Scholarship

Complications during childbirth and pregnancy are a main source of death and disability among women of reproductive age. Approximately 536,000 women die from pregnancy-related complications each year. Developing countries suffer most profoundly, accounting for 99% of deaths. The world's nations, by endorsing U.N. Millennium Development Goals, recognized that most deaths are preventable; they have pledged to reduce maternal mortality by 75% by 2015. This Article assesses the barriers presented by user fees - formal charges for health services still charged by many countries - to the attainment of MDGs. It shows that user fees hamper healthcare access, particularly in emergency …

Arbitrator Integrity: The Transient And The Permanent, William W. Park

Faculty Scholarship

The somewhat excessive words attributed to Heraclitus find some application in the current search for ethical standards applicable to. arbitrators sitting in international disputes. New patterns of misbehavior create new types of ethical challenges. Few criteria for evaluating arbitrator independence and impartiality will likely stay foolproof for long, given how ingenious fools often prove themselves to be.

More Than What Courts Do: Jurisprudence, Decision, And Dignity — In Brief Encounters And Global Affairs, Robert D. Sloane

Faculty Scholarship

This brief essay is the edited transcript of the author’s opening remarks for a panel on jurisprudence in international law at the conference entitled Realistic Idealism in International Law, held at Yale Law School on April 24, 2009, in honor of W. Michael Reisman. It canvasses some of the animating factors and features of the New Haven School of jurisprudence with which Reisman is identified, and it seeks to explain and clarify some of his signature contributions to the School’s methodology.

Supreme Court Justices, Empathy, And Social Change: A Comment On Lani Guinier's Demosprudence Through Dissent, Linda C. Mcclain

Faculty Scholarship

Justice Souter's imminent retirement from the U.S. Supreme Court provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama's remarks about the relevance of life experience and of empathy are sparking discussion of relevant judicial qualifications. This Essay examines Professor Lani Guinier's recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call "demosprudence." That controversial decisions by the United States Supreme Court can spur dissenting …

Regulating Federal Prosecutors: Let There Be Light, Bruce A. Green

Faculty Scholarship

No abstract provided.

Riots And Cover-Ups: Counterproductive Control Of Local Agents In China, Carl F. Minzner

Faculty Scholarship

Chinese cadre responsibility systems are a core element of Chinese law and governance. These top-down personnel systems set concrete target goals linked to official salaries and career advancement. Judges and courts face annual targets for permissible numbers of mediated, reversed, and closed cases; Communist Party secretaries and government bureaus face similar targets for allowable numbers of protests, traffic accidents, and mine disasters. For many local Chinese officials, these targets have a much more direct impact on their behavior than do formal legal and regulatory norms.

This Article argues that Chinese authorities are dependent on responsibility systems, particularly their use of …

The Andean Tribunal Of Justice And Its Interlocutors: Understanding Preliminary Reference Patterns In The Andean Community, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system. We find that the …

Teaching Transactional Skills In A Clinic, Robert Statchen, Serge Martinez

Faculty Scholarship

In May 2008, the Center for Transactional Law and Practice at Emory University School of Law held a conference entitled “Teaching Drafting and Transactional Skills—The Basics and Beyond.” This Article reflects the Authors’ discussion of teaching drafting and transactional skills to law students in the context of a law school clinic.

No More Secret Laws: How Transparency Of Executive Branch Legal Policy Doesn't Let The Terrorists Win, Sudha Setty

Faculty Scholarship

One of the key hallmarks of a democratic nation is that there are no secret laws. In the post-September 11, 2001 era, the George W. Bush administration relied on national security concerns and the unitary executive theory of presidential power as justifications for maintaining secret legal policies that govern parts of the war on terrorism that affect serious issues of human rights and civil liberties. These legal policies sometimes staked out positions that are at odds with legislation, treaties, and court decisions—but the parameters of the executive branch legal policies were sometimes unknown because of the lack of public disclosure. …

Taming The Employment Sharks: The Case For Regulating Profit-Driven Labor Market Intermediaries In High Mobility Labor Markets, Harris Freeman, George Gonos

Faculty Scholarship

Over the last quarter century, a profound restructuring of U.S. labor markets has occurred. Long-term job tenure, internal labor markets, and employer-sponsored benefits have waned under the pressures of neoliberal globalization. The trend is toward increasingly precarious, shorter-term, serial employment relationships that offer significantly lower wages, reduced job-related benefits, and formidable obstacles to the exercise of employment rights. This fundamental shift has moved so-called “non-standard” employment arrangements, once viewed as marginal, into the core economy. As a result, a remarkable array of profit-driven labor market intermediaries (LMIs) are now embedded in mainstream labor markets. Temporary help and staffing agencies, payrolling …

Regulatory Takings: A Chronicle Of The Construction Of A Constitutional Concept, Garrett Power

Faculty Scholarship

In the American constitutional system the sovereign has the power to enact “regulations which are necessary to the common good and general welfare.” But the Fifth Amendment to the United States Constitution proscribes that : “No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.” And the question of whether a sovereign regulation has “taken” private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles …

The Case For The Tax Collector, Marie T. Reilly

Faculty Scholarship

This article considers the question: Is a transfer of property via a noncollusive, properly conducted property tax foreclosure process entitled to respect in bankruptcy against the trustee's fraudulent transfer avoiding power? It answers this question in the affirmative. Part II examines the Court's opinion in BFP v. Resolution Trust Corp. and how courts have applied it in fraudulent transfer challenges to tax foreclosure transfers. Most courts have read BFP as requiring a comparison between the conditions under which the tax foreclosure at issue occurs and mortgage foreclosure. If the tax foreclosure process does not require public sale with competitive bidding, …

Oral History Of Justice Jesse W. Carter Introduction, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Legal And Managerial "Cultures" In Corporate Representation, Geoffrey C. Hazard, Jr.

Faculty Scholarship

No abstract provided.

Cash Businesses And Tax Evasion, Susan C. Morse, Stewart Karlinsky, Joseph Bankman

Faculty Scholarship

No abstract provided.

Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr., Dana Remus Irwin

Faculty Scholarship

No abstract provided.

Negotiating Classroom Process: Lessons From Adult Learning, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

Prosecuting Core Crimes In The United States: Recent Changes And Prospects For 2010, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson

Faculty Scholarship

No abstract provided.

Notes On A Progressive National Water Policy, John D. Leshy

Faculty Scholarship

No abstract provided.

Probabilities, Planning Failures, And Environmental Law, Dave Owen

Faculty Scholarship

No abstract provided.