Digital Commons Network^™

Rivers To Live By: Can Western Water Law Help Communities Embrace Their Streams?, Reed D. Benson

Faculty Scholarship

In short, this article will adress: (1) the ways in which traditional western water law has hindered efforts to preserve free-flowing rivers in our communities; (2) some examples of how cities and towns are making efforts to keep their rivers flowing in order to provide recreation and other public benefits, and the ways in which water law is beginning to change to accomodate these efforts; and (3) some suggestions for water law reforms that would expand opportunities for western communities to keep water flowing in their rivers.

Symposium: Current Issues In Community Economic Development: Foreword: Entrepreneurship, Race, And The Current Environment For Community Economic Development, Eric J. Gouvin

Faculty Scholarship

On March 30, 2007, the Western New England College School of Law and the School of Business jointly hosted the second annual academic conference on Current Issues in Community Economic Development, sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference promotes the two primary goals of the Law and Business Center: (1) to provide technical legal and business assistance to entrepreneurs and (2) to sponsor educational and outreach events focused on entrepreneurship and economic development. The Law and Business Center is a unique resource in Western Massachusetts. The combination of legal and business …

Least Cost Avoidance: The Tragedy Of Common Safety, Nuno M. Garoupa, Giuseppe Dari-Mattiacci

Faculty Scholarship

This paper shows that the least cost avoider approach in tort is not necessarily the optimal way to attain least cost avoidance when accidents can be avoided by either of two parties. When parties do not observe each other's costs of care at the time of the accident and are unable to determine which party is the least cost avoider, they fail to anticipate the outcome of the adjudication. Under these circumstances, accident avoidance becomes a commons problem because care by each individual party reduces the prospect of liability for both parties. As a result parties suboptimally invest in care. …

What Lawyers, What Edge?, Michael E. Tigar

Faculty Scholarship

No abstract provided.

School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher

Faculty Scholarship

In the past five years, public schools across the country have begun to explore a new avenue of fundraising: selling naming rights to school facilities. The popularity and monetary value of these sales, however, only highlight the importance of the First Amendment concerns they raise. This Article uses school naming rights as a lens through which to examine the conflicts between government speech, commercial speech, and forum analysis, three categories of First Amendment analysis that are simultaneously and problematically implicated by school naming rights sales. Courts and scholars have long noted the internal ambiguities within these three categories, but have …

An Answer To The Question: "What Is Poststructuralism?", Bernard E. Harcourt

Faculty Scholarship

What is poststructuralism? It has always struck me as odd that so many critical theorists are reluctant to offer an answer to this question. In this essay, I unpack the term and provide a synoptic answer. Poststructuralism, I suggest, is a style of critical reasoning that focuses on the moment of ambiguity in our systems of meaning, as a way to identify the ethical choices that we make when we overcome the ambiguity and move from indeterminacy to certainty of belief in our efforts to understand, interpret, and shape our environment. Post-structuralism concentrates on the moment when we impose meaning …

The Effect Of Court-Ordered Hiring Quotas On The Composition And Quality Of Police, Justin Mccrary

Faculty Scholarship

Arguably the most aggressive affirmative action program ever implemented in the United States was a series of court-ordered racial hiring quotas imposed on municipal police departments. My best estimate of the effect of court-ordered affirmative action on work-force composition is a 14-percentage-point gain in the fraction African American among newly hired officers. Evidence on police performance is mixed. Despite substantial black-white test score differences on police department entrance examinations, city crime rates appear unaffected by litigation. However, litigation lowers slightly both arrests per crime and the fraction black among serious arrestees.

People As Resources: Recruitment And Reciprocity In The Freedom-Promoting Approach To Property, Jedediah S. Purdy

Faculty Scholarship

Theorists usually explain and evaluate property regimes either through the lens of economics or by conceptions of personhood. This Article argues that the two approaches are intertwined in a way that is usually overlooked. Property law both facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood. It must do both, because human beings are both resources for one another and the persons whose moral importance the legal system seeks to protect. This Article explores how property law has addressed this paradox in the past and how it might in the future.

Two bodies …

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

Recent developments in China’s courts reflect a paradox largely avoided in literature on the subject: Can China’s courts play an effective role in a non-democratic governmental system? Changes to courts’ formal authority have been limited, courts still struggle to address basic impediments to serving as fair adjudicators of disputes, and courts continue to be subject to Communist Party oversight. Courts have also confronted new challenges, in particular pressure from media reports and popular protests. At the same time, however, the Party-state has permitted, and at times encouraged, both significant ground-up development of the courts and expanded use of the courts …

A Constitutional Conundrum Of Second Amendment Commas: A Short Epistolary Report, William W. Van Alstyne

Faculty Scholarship

Prompted by the court’s decision in Parker v. District of Columbia, this series of correspondence discusses the effect possible forms of punctuation may have on the Second Amendment. The article makes comments on the important grammars during the founding and also two possible writings of the Second Amendment that contain different sets of punctuation.

The Guantanamo Three Step, Joseph Blocher

Faculty Scholarship

No abstract provided.

To Condone Or Condemn? Regional Enforcement Actions In The Absence Of Security Council Authorization, Monica Hakimi

Faculty Scholarship

The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second …

Jurisdictionality And Bowles V. Russell, Scott Dodson

Faculty Scholarship

No abstract provided.

The Lawyer Is Not The Protagonist: Community Campaigns, Law, And Social Change, The Symposium: Race, Economic Justice, And Community Lawyering In The New Century: Concluding Essay, Jennifer Gordon

Faculty Scholarship

Stories about law and social change can have a sameness to them. Yet in many ways, the tales told in this volume stand out from the crowd. Each story is shaped around a campaign undertaken by a community organization or coalition deeply engaged in the struggle for racial and economic justice. Attorneys appear as supporting players rather than main characters, seeking to help organizations build the power needed to achieve their goals. These lawyers translate information about the law into lay language, pressure opponents, defend the organization, open up spaces for community voice and action, and seek to establish new …

The Morality Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The relationship between property and morality has been obscured by three elements in our intellectual tradition. First is the assumption, which can be traced to Bentham, that property is a pure creature of law. An institution assumed to be wholly dependent on law for its existence is unlikely to be infused with strong moral content. Second is the related tradition, also Benthamite, of examining questions about property law from a utilitarian perspective. Utilitarianism is, of course, a moral theory. But in its modern applications, based on price theory and cost-benefit analysis, it adopts a framework largely indifferent to questions of …

China's Network Justice, Benjamin L. Liebman, Tim Wu

Faculty Scholarship

China's Internet revolution has set off a furious debate in the West. Optimists from Thomas Friedman to Bill Clinton have predicted the crumbling of the Chinese Party-state ("Party-state"), while pessimists suggest even greater state control. But a far less discussed and researched subject is the effect of China's Internet revolution on its domestic institutions. This Article, the product of extensive interviews across China, asks a new and different question. What has China's Internet revolution meant for its legal system? What does cheaper, if not free, speech mean for Chinese judges?

The broader goal of this Article is to better understand …

Launching A Global Rule Of Law Movement: Next Steps November 10, 2005, Katharina Pistor, William Ide, Sandra Day O'Connor, Hilario Davide

Faculty Scholarship

KATHERINE PISTOR: Let me just first express my thanks to the American Bar Association for asking me to be the rapporteur for this conference. I've always felt honored for having been asked. I have to say I feel now even more humbled by the collective wisdom and experience and know-how that has been assembled here and has been expressed over the past two days. So I am in no position right now to pull it all together and give you the strategy of how to move forward. In fact, I do plan to come back to many of you and …

Keeping The Internet Neutral?: Tim Wu And Christopher Yoo Debate, Tim Wu, Christopher S. Yoo

Faculty Scholarship

"Net neutrality" has been among the leading issues of telecommunications policy this decade. Is the neutrality of the Internet fundamental to its success, and worth regulating to protect, or simply a technical design subject to improvement? In this debate-form commentary, Tim Wu and Christopher Yoo make clear the connection between net neutrality and broader issues of national telecommunications policy.

The Demise And Rebirth Of Plant Variety Protection: A Comment On Technological Change And The Design Of Plant Variety Protection Regimes, Laurence R. Helfer

Faculty Scholarship

In 'Technological Change and the Design of Plant Variety Protection Regimes', Mark Janis and Stephen Smith make two novel and provocative claims. They first argue that the legal regime for protecting new plant varieties has become hopelessly outdated in light of recent changes in technology. They next assert that the fate of the plant variety protection (PVP) system illustrates a broader and more disturbing phenomenon in intellectual property law: the potential for sui generis, industry-specific intellectual property regimes to become increasingly ineffective over time. In this brief essay, I offer three points to amplify the authors' contributions and highlight the …

The Law And Policy Beginnings Of Ecosystem Services, James Salzman, J.B. Ruhl

Faculty Scholarship

This article is an introduction to a symposium issue of the journal on ecosystem services. As the brief descriptions of recent developments make clear, the field has changed greatly since the late 1990s and there are a lot of exciting developments underway. With the partnership of the Journal of Land Use & Environmental Law, we thought it important to revisit the state of the field five years after the Stanford workshop. Thus we invited experts across the range of environmental law to Florida State for a two-day workshop assessing the current status of ecosystem services in environmental law. The results …

Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Corrective Justice And Liability For Global Warming, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Immigration Law And The Regulation Of Marriage, Kerry Abrams

Faculty Scholarship

No abstract provided.

Gap Filling In The Zone Of Insolvency, Frederick Tung

Faculty Scholarship

This paper was prepared for a symposium - Twilight in the Zone of Insolvency: Fiduciary Duty and the Creditors of Troubled Companies - at the University of Maryland School of Law.

Attacks on shareholder primacy have come from numerous quarters, arguing for expansion of the class of beneficiaries of directors' fiduciary duties. Regarding duties to creditors - the focus of this symposium - a long line of cases has recognized that once a firm is insolvent, creditors should be the primary beneficiaries of directors' fiduciary duties. Then in 1991, Chancellor Allen's famous discussion in Credit Lyonnais identified a special vicinity …

The Arab Charter On Human Rights 2004, Susan M. Akram

Faculty Scholarship

The Boston University International Law Journal is publishing, for the first time, an English version of the 2004 Arab Charter on Human Rights. A very brief review of how the 2004 Arab Charter came into being introduces this English translation. The drafting history of the Arab Charter on Human Rights begins in 1960. In that year, members of the Union of Arab Lawyers (the oldest NGO in the Arab world) requested the League of Arab States (created in 1945) during their meeting in Damascus to adopt an Arab Convention on Human Rights. Eight years later, participants in the first meeting …

Criminal Performances: Film, Autobiography, And Confession, Jessica Silbey

Faculty Scholarship

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness …

Punitive Damages In The United States, Jack M. Beermann

Faculty Scholarship

his article is an attempt to acquaint the reader with contemporary legal issues surrounding punitive damages in the United States. Pursuant to U.S. federalism, most private law in the United States is state law and can vary significantly from state to state. Contract law, tort (injury) law, property law and criminal law are mainly state law. Many of these areas are governed largely by common law which means that there are no statutes, and courts make the law in the course of resolving individual legal controversies. It is the state common law of injury that allows punitive damages in the …

The 'Why' Of Markets: Fair Use And Circularity, Wendy J. Gordon

Faculty Scholarship

Jim Gibson is right that courts should be wary of letting the mere presence of licensing improperly foreclose the defense of fair use. As he says, a court in a copyright infringement case should not treat the existence of a market for licenses of the work as a factor weighing against the defendant’s claim of fair use until the court has examined “why [that] licensing market exists.  However, Gibson fails to distinguish the varying reasons licensing might be relevant to a fair use determination. As a result, the solution he proffers— attributing relevance to licensing only in markets free of …

Truth Tales And Trial Films, Jessica Silbey

Faculty Scholarship

Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined. There are too many television shows, films, popular novels and web-based entertainment to withdraw "the law" (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this …

Egypt: Criminal Procedure, Sadiq Reza

Faculty Scholarship

This chapter presents the criminal-procedure law of Egypt according to the sources of that law: the 1971 Constitution, the 1950 Code of Criminal Procedure, the 1958 Emergency Law, and other legislation; decisions by the Supreme Constitutional Court (SCC), the Court of Cassation, and other organs of the Egyptian judiciary; and administrative and executive regulations. Included are references to controversial aspects of this law and its practice, such as the use of military courts, state security courts, and emergency courts and powers. The chapter thus serves as an introduction to modern Egyptian criminal procedure and a reference source for scholars and …