Digital Commons Network^™

Recommendations For Durable Solutions For Palestinian Refugees: A Challenge To The Oslo Framework, Susan M. Akram, Terry Rempel

Faculty Scholarship

For more than five decades Palestinian refugees have been denied international protection. Some five million persons, comprising two-thirds of the Palestinian people, and nearly one-third of the global refugee population, have remained without a durable solution to their plight. More than half of all Palestinian refugees lack basic day-to-day protection, such as physical security, freedom of movement, and access to employment. Today, the Palestinian refugee problem is one of the largest and longest running refugee problems in the world.

Evaluating Mistakes In Intellectual Property Law: Configuring The System To Account For Imperfection, Maureen A. O'Rourke

Faculty Scholarship

In this Essay, the author argues that in assessing the performance of the intellectual property laws, it is useful to conceive of intellectual property law as a system comprised of both interacting decision-makers and other sets of law. Those decisionmakers include Congress, the PTO, and courts, and the other relevant laws include antitrust and contract. The author reviews the major intellectual property statutes, illustrating ways in which different institutions may be situated to correct the errors of another and how antitrust and contract also can work to correct errors in the scope of protection. The Essay concludes by arguing that …

Limited Liability And Creditors' Rights: The Limits Of Risk Shifting To Creditors, Frederick Tung

Faculty Scholarship

In this Symposium, we were asked to identify and articulate the nature of our passion for teaching corporate law. My passion-a bit odd in this context, perhaps-is bankruptcy. In addition to teaching the basic Corporations course, I also teach Corporate Reorganization and Bankruptcy, and my research has focused primarily on corporate reorganization issues. As I say, my particular passion may seem out of place in the context of this Symposium. The corporation is an engine for maximizing wealth. Yet we bankruptcy types obsess about financial ruin. We pray for the next recession. We sell short. Our chips sit on the …

Symposium: Regulatory And Liability Considerations, Michael S. Baram, Ellen Flannery, Patricia Davis, Gary Marchant

Faculty Scholarship

You can tell from remarks by prior speakers that regulatory approvals and liability prevention are of critical importance to progress in biomaterials. Gene therapy trials and the tragic outcomes of some of those trials have raised the specter of government suspension of clinical studies, termination of funding, and potential liability for personal injury under malpractice or products liability doctrines. Regulatory requirements and the terms of research grants and contracts have to be very carefully addressed by organizations testing, developing, making, selling and using biomaterials, biotechnology, and medical devices. However, many regulatory requirements are incomplete, ambiguous and confusing because the agencies …

Copyright, Wendy J. Gordon, Robert G. Bone

Faculty Scholarship

Copyright is the branch of Intellectual Property Law that governs works of expression such as books, paintings and songs, and the expressive aspects of computer programs. Intellectual products such as these have a partially public goods character: they are largely inexhaustible and nonexcludable. Intellectual Property Law responds to inexcludability by giving producers legal rights to exclude nonpayers from certain usages of their intellectual products. The goal is to provide incentives for new production at fairly low transaction costs. However, the copyright owner will charge a price above marginal cost and this, coupled with the inexhaustibility of most copyrighted products, creates …

Fine-Tuning Tasini: Privileges Of Electronic Distribution And Reproduction, Wendy J. Gordon

Faculty Scholarship

The United States Court of Appeals for the Second Circuit is arguably the soundest copyright court in the nation. In Tasini v. New York Times, it handled a challenge brought by a group of freelance writers against publishers and database proprietors. The controversy, now pending in the United States Supreme Court, has wide importance because it will determine what entitlements attach to a publisher who purchases a privilege to include a freelancer's story in the publisher's magazine or newspaper. Essentially, the issue is whether a publisher, who has not purchased the story's copyright and has not obtained an explicit …

The Constitutionality Of Copyright Term Extension: How Long Is Too Long?, Jane C. Ginsburg, Wendy J. Gordon, Arthur R. Miller, William F. Patry

Faculty Scholarship

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.

Unbending Gender: Why Work And Family Conflict And What To Do About It, Joan Williams, Jamie Boyle, Adrienne Davis, Martha Ertman, Nancy Polikoff, Katharine B. Silbaugh, Lucie White, Susan Carle, Leti Volpp

Faculty Scholarship

PROCEEDINGS PROFESSOR WILLIAMS: I am going to talk fast, and talk short as an introduction to this panel. First, just a very few words about the norm of parental care. The goal-my goal, anyway, in using the norm of parental care which, of course, started out really as the norm of mother care-is to try to use the momentum of domesticity to bend our current gender to use the norm of parental care as a way of democratizing access to domesticity, which has always been classbased.

The Rich Have More Money, George J. Annas

Faculty Scholarship

Review of Ethics, Equity and Health for All, by Z. Bankowski, J. H. Bryant, and J. Gallagher, eds. (Geneva: CIOMS, 1997)

Accountants' Independence The Recent Dilemma, Tamar Frankel

Faculty Scholarship

A fundamental issue has been raised recently in connection with the status of "independent accountants." The issue involves a new breed of a few very large accounting firms. These firms are engaged in global commerce and finance, and cater to an important segment of multinational corporations.

These mammoth accounting firms raise a familiar question in a new context. On the one hand, the size and diversity of the firms meet the needs of large multinational clients and offer efficiency benefits. On the other hand, these benefits expose the firms to increased possible conflicts of interest and endanger the firms' gatekeeping …

Securitizing Insurance Risks, Tamar Frankel, Joseph W. Laplume

Faculty Scholarship

This Article analyzes and evaluates the legal problems that have arisen in connection with this rapidly developing insurance risk securitization. The first part of the Article deals with legal issues concerning the SPVs that undertake insurance and reinsurance contracts with ceding insurers and the other parties to the transaction. The Article addresses the dilemma in choosing the laws applicable to SPVs, the bonds they issue, and the persons and entities that form part of the securitization transaction. These laws involve state insurance laws, bankruptcy and tax laws, the Investment Company Act of 1940 and the Commodity Exchange Act of 1934, …

New Plants As Natural Experiments In Economic Adjustment: Adjustment Costs, Learning-By-Doing And Lumpy Investment, James Bessen

Faculty Scholarship

A large sample of new plants is studied to reveal detailed adjustment behavior for capital, labor and productivity. Once production has begun, capital adjusts almost as quickly as labor. Overall, capital adjustment is lumpy while labor follows a learning-by-doing model rather than a convex adjustment cost model. Plants are quite heterogeneous, however: convex adjustment costs appear important at small plants, but large plants exhibit lumpy investment and substantial investment in learning-by-doing. A positive association between plant productivity growth and wages (and also the change in wages) corroborates the importance of learning-by-doing. Also, learning-by-doing appears to influence the behavior of large …

The Incident At Cavalese And Strategic Compensation, Robert D. Sloane

Faculty Scholarship

In 1953, the United States ratified the NATO Status of Forces Agreement. The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established a jurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. This result was vital to NATO's operations, for, in democratic host states, popular …

The Political Parties And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

Recent campaign finance innovations of the major political parties have blown large and widening holes in federal campaign finance regulation. The relationship between parties and candidates also challenges the basic doctrinal categories of campaign finance law. The Constitution permits regulation of campaign finances to deal with the danger of corruption. But some judges and commentators have argued that the parties present no danger of corruption. This Article finds that, although parties play a positive role in funding campaigns, certain party practices raise the specter of corruption in the constitutional sense. Moreover, due to the close connection between parties and candidates, …

Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr.

Faculty Scholarship

In two recent and highly technical decisions – Amchem Products v. Windsor and Ortiz v. Fibreboard Corp. – the Supreme Court has recognized that a serious potential for collusion exists in class actions and has outlined a concept of "class cohesion" as the rationale that legitimizes representative litigation. Although agreeing that a legitimacy principle is needed, Professor Coffee doubts that "class cohesion" can bear that weight, either as a normative theory of representation or as an economic solution for the agency cost and collective action problems that arise in representative litigation. He warns that an expansive interpretation of "class cohesion" …

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors …

Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt

Faculty Scholarship

In 1947, this Review published two lectures on statutory interpretation by Jerome Frank and Felix Frankfurter. Both jurists were concerned with a basic question: How constrained are judges when they interpret legislation? The answers each gives, while similar in some respects, differ strikingly. In arguing that interpretation necessarily involves a creative element, Frank analogizes the role of a judge in interpreting legislation to that of a performer in interpreting a musical composition. Although he argues that judicial creativity is constrained, Frank views statutory interpretation as "a kind of legislation." For Frankfurter, by contrast, in construing a statute, a judge is …

Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer

Faculty Scholarship

Options are granted to executives to inspire better performance by tying pay to the employer's stock price. Yet this incentive rationale no longer holds if executives can use the derivatives market to simulate a sale of their options, a practice known as hedging. This Article evaluates the effectiveness of existing legal constraints on hedging by executives, including limits derived from contract, securities and tax law. Although investment bankers have been searching for ways around these constraints, the bottom line is that, at least for now, executives are unable to hedge option grants: While contractual limits are rare, the securities law …

A Legal Giant Is Dead, Henry Paul Monaghan

Faculty Scholarship

Herbert Wechsler died at his home on April 26, 2000. Two days later, the New York Times obituary's headline announced the passing of a "legal giant," a richly merited appellation. Herbert Wechsler was, I believe, the greatest academic figure in the history of Columbia Law School. At the height of his career, Herb stood at the top of three academic fields: criminal law, constitutional law, and federal jurisdiction. His achievements were, moreover, not confined to Columbia, the faculty of which he joined in 1933 after having served as law clerk to Justice Harlan Fiske Stone. From 1944 to 1946, Herb …

Herbert Wechsler And The Criminal Law: A Brief Tribute, Harold Edgar

Faculty Scholarship

The great English architect Christopher Wren is buried in his most famous church, St. Paul's London. The inscription on his memorial stone concludes with the words: Lector, si monumentum requiris, circumspice. Reader, if you seek his monument, look around you.

That instruction serves well those who would appraise and honor Herbert Wechsler's contributions to American criminal law. When he joined the Columbia Law School faculty in 1933, this school did not teach criminal law and much of the profession thought the topic was not worth studying.' What fabulous good fortune it was that Herb thought otherwise. Throughout a long and …

Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard

Faculty Scholarship

There are 3,119,963 square miles in the continental United States. That sounds like plenty of space to put just about anything. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era – unconstrained siting – lasted until the late 1960s. Then began the second era – protecting natural areas. In the early 1990s, we embarked upon a third era – environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that …

The Legal Construction Of Adolescence, Elizabeth S. Scott

Faculty Scholarship

American lawmakers have had relatively clear images of childhood and adulthood-images that fit with our conventional notions. Children are innocent beings, who are dependent, vulnerable, and incapable of making competent decisions. Several aspects of the legal regulation of childhood are based on this account. Children are assumed not to be accountable for their choices or for their behavior, an assumption that is reflected in legal policy toward their criminal conduct. They are also assumed to be unable to exercise the rights and privileges that adults enjoy, and thus are not permitted to vote, drive, or make their own medical decisions. …

On The Socratic Maxim, Joseph Raz

Faculty Scholarship

Many years ago John Finnis and I became interested in the Socratic view that it is better to suffer wrong than to do it. My interest was triggered by Anselm Müller's lecture on the subject given at Balliol at that time. Finnis discussed the issue in his Fundamentals of Ethics, where Müller's influence on him is acknowledged. At the time John Finnis and I debated the maxim and had a lengthy correspondence about it, but we did not convince each other. Now when I return to the issue, I can no longer remember the position I then took, except …

Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman

Faculty Scholarship

The Independent Counsel (IC) statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr.

Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end, bringing criminal charges against people believed to have information …

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …

Localism And Regionalism, Richard Briffault

Faculty Scholarship

Localism and regionalism are normally seen as contrasting, indeed conflicting, conceptions of metropolitan area governance. Localism in this context refers to the view that the existing system of a large number of relatively small governments wielding power over such critical matters as local land use regulation, local taxation, and the financing of local public services ought to be preserved. The meaning of regionalism is less clearly defined and proposals for regional governance vary widely, but most advocates of regionalism would shift some authority from local governments, restrict local autonomy, or, at the very least, constrain the ability of local governments …

Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip Genty

Faculty Scholarship

After almost 12 years in law teaching, I approached my first sabbatical with a single goal: to free myself from cases. At that time my clinic clients were primarily parents who were involved in family court proceedings in which they were trying to preserve their parental rights and get their children out of the foster care system. Such cases are emotionally draining for both the client and the lawyer. Thus, while I welcomed the chance to have a semester off from teaching and attending faculty and committee meetings, I felt that I needed a break from the demands of lawyering …

The United States' Doctrine Of Exhaustion: Parallel Imports Of Patented Goods, Margreth Barrett

Faculty Scholarship

No abstract provided.

The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann

Faculty Scholarship

Common justifications for the use of the letter of credit fail to explain its widespread use. The classic explanation claims that the letter of credit provides an effective assurance of payment from a financially responsible third party. In that story, the seller – a Taiwanese clothing manufacturer, for example – fears that the overseas buyer – Wal-Mart – will refuse to pay once the goods have been shipped. Cross-border transactions magnify the concern, because the difficulties of litigating in a distant forum will hinder the manufacturer's efforts to force the distant buyer to pay. The manufacturer-seller solves that problem by …

Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd

Faculty Scholarship

Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more – often below a majority. Grants of executive clemency reached a twenty year high …