Digital Commons Network^™

Thinking About Feminism, Social Justice, And The Place Of Feminist Law Journals: A Letter To The Editor, Suzanne B. Goldberg

Faculty Scholarship

Dear Editors:

You, like the editors who came before you, have staked a place in an invigorating and challenging conversation about the transformative potential of feminist approaches to social justice.1 As you envision and edit your journal, fundamental questions about the purpose of feminist scholarship and the value of retaining an autonomous space for feminist jurisprudence loom large.

Not surprisingly, The Bluebook will provide little guidance on these topics. Instead, consistent with the feminist enterprise,2 you will need to search out sources, both within and outside of the law school library, to spark your critical thinking. Ideally these will ensure …

Damage To Family Relationships As A Collateral Consequence Of Parental Incarceration, Philip Genty

Faculty Scholarship

The most obvious and perhaps most serious collateral consequence of incarceration is family separation. Imprisonment undermines families and has a detrimental impact upon children, caretakers, and the communities in which they live. Unlike other collateral consequences, family separation has an irreversible impact upon both parents and children. The time apart is lost forever because a childhood can never be recovered.

This Essay will review the available statistical information about incarcerated parents and their children and discuss the detrimental effects of parental incarceration upon families. The Essay will conclude with some reflections about why the adverse consequences of incarceration for prisoners' …

Unregulable Defenses And The Perils Of Shareholder Choice, Jennifer Arlen, Eric L. Talley

Faculty Scholarship

A significant debate rages within corporate law scholarship as to whether shareholders or managers should be granted authority over the tender offer process once a bid is imminent. Both sides generally agree that the issue depends on whether shareholders are capable of exercising informed choice over takeover bids. Supporters of managerial veto power contend that the arguments favoring professional management of publicly held firms carry over into the tender offer context. Proponents of shareholder choice, on the other hand, argue that shareholders can act on their own behalf in the special circumstances surrounding contests for corporate control.

This Article challenges …

Private Information, Self-Serving Biases, And Optimal Settlement Mechanisms: Theory And Evidence, Seth A. Seabury, Eric L. Talley

Faculty Scholarship

The law and economics literature on suit and settlement has tended to focus on two alternative conceptual models. On the one hand, the "optimism" model of pre-trial negotiation attempts to explain settlement failure as an artifact of unfounded optimism by one or both parties. The idea that bargaining agents can adopt such non-rational biases receives support from experimental evidence. On the other hand, the "private information" model of pre-trial bargaining portrays settlement failures as an artifact of strategic information rent extraction. It finds support in some experimental evidence as well. This paper presents (for the first time) a mechanism-design approach …

Managing A Correctional Marketplace: Prison Privatization In The United States And The United Kingdom, David Pozen

Faculty Scholarship

This article traces the recent history and development of privately operated prisons in the United States and the United Kingdom, and it compares their current role in the countries' correctional systems. The privatization movements of the U.S. and the U.K. were driven by similar factors, but the relative weight of these factors varied between the two. In the U.S., legal pressures to alleviate prison overcrowding and fiscal incentives to contract out prison construction were stronger, while in the U.K. the ideological and political aims of the governing party exerted more influence in stimulating privatization. America's experience with private prisons in …

A Theory Of Self-Enforcing Indefinite Agreements, Robert E. Scott

Faculty Scholarship

One of the core principles of contract law is the requirement of definiteness. Conventional wisdom holds, however, that the indefiniteness doctrine is largely ignored by courts. In this Article, Professor Scott examines the contemporary case law on indefinite contracts and his review yields three striking findings. First, there is a surprisingly high volume of litigation. Second, the indefiniteness doctrine lives on in the common law of contracts. Third, a large number of the indefiniteness cases involve contracts that are "deliberately" incomplete – that is, parties have declined to condition performance on available, verifiable measures that could be specified in the …

The Attorney As Gatekeeper: An Agenda For The Sec, John C. Coffee Jr.

Faculty Scholarship

Section 307 of the Sarbanes-Oxley Act authorizes the SEC to prescribe "minimum standards of professional conduct" for attorneys "appearing or practicing" before it. Although the initial debate has focused on issues of confidentiality, this terse statutory provision frames and seemingly federalizes a much larger question: What is the role of the corporate attorney in public securities transactions? Is the attorney's role that of (a) an advocate, (b) a transaction cost engineer, or, more broadly, (c) a gatekeeper – that is, a reputational intermediary with some responsibility to monitor the accuracy of corporate disclosures? Skeptics of any gatekeeper role for attorneys …

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 …

Recent Cases: Appellate Procedure - Force Of Circuit Precedent - Ninth Circuit Holds That Three-Judge Panels May Declare Prior Cases Overruled When Intervening Supreme Court Precedent Undercuts The Theory Of Earlier Decisions, Robert J. Jackson Jr.

Faculty Scholarship

The nation's courts of appeals have struggled to devise a coherent approach to harmonizing existing circuit case law with intervening decisions of the Supreme Court.' When the Court directly overrules a decision of a court of appeals, it is agreed that the overruled decision loses the force of law. But when a Supreme Court opinion disfavors a circuit's jurisprudential theory, the courts of appeals must determine to what extent cases relying on the rejected theory remain good law. Recently, in Miller v. Gammie (Gammie II),2 the United States Court of Appeals for the Ninth Circuit, sitting en banc, adopted an …

The Making Of The Second Rehnquist Court: A Preliminary Analysis, Thomas W. Merrill

Faculty Scholarship

The Supreme Court is implicitly assumed to have a certain unity of character under each Chief Justice. Hence, we refer to the "Marshall Court," the "Warren Court," and the "Rehnquist Court." A closer look at history reveals that this assumption of a natural Court defined by the tenure of each Chief Justice is often misleading. The Marshall Court had a different character late in its life than it did in its early years. Similarly, the Warren Court became distinctively more liberal and activist after 1962 when Felix Frankfurter retired and was replaced by Arthur Goldberg.

Although the Rehnquist Court is …

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 …

Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be. These gaps are unsurprising given the traditional definition of contract as embracing all promises that the law will enforce. Even a theory of contract law that focuses only on the enforcement of bargains must still consider the entire continuum from standard form contracts between firms and consumers to commercial contracts among businesses. No descriptive theory has yet explained a law of contract that comprehends such a broad domain. Normative theories that are grounded in a single …

Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

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 …

Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon

Faculty Scholarship

Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Legal doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. Under current doctrine, the lawyer's responsibilities differ strongly depending on whether the representation is characterized as 'joint" representation of the organization 's constituents or "entity" representation. This Article argues that the choice between the two characterizations often has been arbitrary and that the underlying differences between them have been misunderstood. With respect to entity representation, it criticizes a prominent tendency in the …

Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon

Faculty Scholarship

The Community Justice idea and its core institution – the Community Court – is an ambitious innovation intended to generate new solutions and practices. It thus inevitably calls for adaptation of the established roles associated with the court system, and especially the criminal justice system. It asks practitioners to learn new skills, to accept new conventions, and to participate in the elaboration of a rapidly evolving experiment.

It is thus not surprising that many lawyers are anxious about the system. It remains an interesting question, however, whether their anxiety represents something more than the discomfort that change and challenge typically …

Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon

Faculty Scholarship

Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.

The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the bar's …

On Discipline And Canon, Katherine M. Franke

Faculty Scholarship

While the title of the panel I participated in was "Why Do We Eat Our Young?", I think I prefer: "On Discipline and Canon," or to rework the title of the panel in the program, "Why Do We Eat Our Girlfriends?"

In my short remarks, I would like to raise a set not of answers, but of questions that over the last year or so a few of us have been discussing outside of our published work. These questions seem apt both for this panel and for this conference. Last November a group of really wonderful women at the University …

Reciprocal Effects Of Crime And Incarceration In New York City Neighborhoods, Jeffery Fagan, Valerie West, Jan Holland

Faculty Scholarship

The concentration of incarceration in social groups and areas has emerged in the past decade as a topic of research and policy interest. This interest was fueled by several factors: persistent continued growth of incarceration through the 1990s, even as crime rates fell nationally for over seven years; persistent racial disparities in incarceration; assessments of the collateral consequences of incarceration that potentially aggravate the causal dynamics that lead to elevated crime rates; rapid growth in the number of returning prisoners to their communities; an influx that may strain social control in neighborhoods where social and economic disadvantages have already created …

Theorizing Community Justice Through Community Courts, Jeffery Fagan, Victoria Malkin

Faculty Scholarship

Community justice practitioners argue that the justice system has long ignored its biggest clients-citizens and neighborhoods that suffer the everyday consequences of high crime levels. One response from legal elites has been a package of court innovations and new practices known as "community justice," part of a broader appeal to "community" and "partnership" common now in modern discourse on crime control. This concept incorporates several contemporary visions and expressions of justice within the popular and legal literatures: problem-solving courts (such as drug courts, mental health courts, domestic violence courts, gun courts, and, of course, juvenile courts); the inclusion of victims …

Assessing Theories Of Global Governance: A Case Study Of International Antitrust Regulation, Anu Bradford

Faculty Scholarship

An effective, legitimate model of global governance must strike a delicate balance between national sovereignty and international cooperation. As such, governance on an international level is a constantly evolving discourse among multiple actors whose respective roles and influence vary across time and policy realms. The participation of multiple actors in global governance is widely recognized, but there is considerable disagreement as to the appropriate distribution of power among these participants and the optimal pattern for their interaction. We may never be able to construct an ideal global governance model. But the attempt to create such a model by examining the …

Placing The Adoptive Self, Carol Sanger

Faculty Scholarship

[A]doption law and practices are guided by enormous cultural changes in the composition and the meaning of family. As families become increasingly blended outside the context of adoption – with combinations of blood relatives, step-relatives, de facto relatives, and ex-relatives sitting down together for Thanksgiving dinner as a matter of course – birth families and adoptive families knowing one another may not seem so very strange or threatening at all. There will simply be an expectation across communities that ordinary families will be mixed and multiple. With that in mind, we should hesitate before establishing embeddedness as the source of …

An Exclusive Right To Evoke, Stacey Dogan

Faculty Scholarship

Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White's publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons …

Book Review: Dekker, The Invisible Line, Joseph Blocher

Faculty Scholarship

Reviewing Henri A.L. Dekker, The Invisible Line: Land Reform, Land Tenure Security and Land Registration (2003)

The Norm Of Prior Judicial Experience And Its Consequences For Career Diversity On The U.S. Supreme Court, Lee Epstein, Jack Knight, Andrew D. Martin

Faculty Scholarship

No abstract provided.

Legal Transitions: Some Welfarist Remarks, Matthew D. Adler

Faculty Scholarship

This essay offers a sympathetic, utilitarian critique of Louis Kaplow's famous argument for legal retroactivity in his 1986 article, "An Economic Analysis of Legal Transitions." The argument, very roughly, is that the prospect of retroactivity is desirable if citizens are rational because it gives them a desirable incentive to anticipate legal change. My central claim is that this argument trades upon a dubious, objective view of probability that assumes rational citizens assign the same probabilities to states as rational governmental officials. But it is subjective, not objective probabilities that bear on rational choice, and the subjective probabilities of rational citizens …

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

Introduction To, Preferences And Rational Choice: New Perspectives And Legal Implications, Matthew D. Adler, Claire Finkelstein, Peter Huang

Faculty Scholarship

No abstract provided.

The Puzzle Of Ex Ante Efficiency: Does Rational Approvability Have Moral Weight?, Matthew D. Adler

Faculty Scholarship

A governmental decision is "ex ante efficient" if it maximizes the satisfaction of everyone's preferences ex ante, relative to other possible decisions. Equivalently, each affected person would be rational to approve the decision, given her preferences and beliefs at the time of the choice. Does this matter, morally speaking? Do governmental officials - legislators, judges, regulators - have a moral reason to make decisions that are ex ante efficient? The economist's answer is "yes." "Ex ante efficiency" is widely seen by welfare economists to have moral significance, and often appears within law-and-economics scholarship as a criterion for evaluating legal doctrines. …

Risk, Death And Harm: The Normative Foundations Of Risk Regulation, Matthew D. Adler

Faculty Scholarship

Is death a harm? Is the risk of death a harm? These questions lie at the foundations of risk regulation. Agencies that regulate threats to human life, such as the EPA, OSHA, the FDA, the CPSC, or NHTSA, invariably assume that premature death is a first-party harm - a welfare setback to the person who dies - and often assume that being at risk of death is a distinct and additional first-party harm. If these assumptions are untrue, the myriad statutes and regulations that govern risky activities should be radically overhauled, since the third-party benefits of preventing premature death and …