Digital Commons Network^™

The Geopolitical Constitution: Executive Expediency And Executive Agreements, Joel R. Paul

Faculty Scholarship

No abstract provided.

Contract Interpretation In California: Plain Meaning, Parol Evidence And Use Of The "Just Result" Principle, H.G. Prince

Faculty Scholarship

No abstract provided.

The Author Of Roe, Radhika Rao

Faculty Scholarship

No abstract provided.

Reconceiving Privacy: Relationships And Reproductive Technology, Radhika Rao

Faculty Scholarship

No abstract provided.

Sentencing In England: The Rise Of Populist Punishment, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

Global Labor Rights And The Alien Tort Claims Act, Sarah H. Cleveland

Faculty Scholarship

Are labor rights human rights? Are some worker rights so fundamental that must be respected by all nations, and all corporations, under all circumstances? If so, who has the authority to define such rights, and how should they be enforced? What is the effect on the global economy of enforcing international worker rights? These are some of the questions confronted by the authors of Human Rights, Labor Rights, and International Trade, a compilation of essays by an international group of scholars, labor rights activists, and corporate executives addressing contemporary topics in the dialectic among labor, trade, and human rights.

The New York City Charter And The Question Of Scale, Richard Briffault

Faculty Scholarship

A central issue for the New York City Charter – from the consolidation of Greater New York City a century ago until today – has been the question of scale. Or perhaps I should say the questions of scale. There really have been two questions: Is New York City large enough to deal with problems of regional scope? Does New York City have the necessary mechanisms to deal with problems that are of sublocal scope? In other words, can the City of New York provide both the regional and local governance New Yorkers need?

The creation of Greater New York …

Recent Publications: Puerto Rico, Christina D. Ponsa-Kraus

Faculty Scholarship

Ask yourself why you are reading a review of a book about a colony called Puerto Rico in a journal on international law. Isn't Puerto Rico a self-governing Commonwealth? Isn't it part of the United States? If you decide to buy the book, ask yourself where in the bookstore you should look for it. In the international relations section? The U.S. history section? A turn-of-the-century Supreme Court case analyzing the status of Puerto Rico (and other territories "acquired" by the United States in 1901) may provide some guidance: Puerto Rico is "foreign in a domestic sense."' Perhaps the bookstore has …

New York State's Brownfields Programs: More And Less Than Meets The Eye, Michael B. Gerrard

Faculty Scholarship

New York, as the nation's second most populous state, and one of its oldest and most urban, has an abundance of brownfields-slightly contaminated properties that were formerly used for industrial purposes, but that are now unused or underused, and ripe for redevelopment if they can be cleaned up. Thus, it may be surprising that New York is one of the few states without a comprehensive statute or regulation for the voluntary cleanup of brownfields.

There is, however, more here than meets the eye. New York has three important programs and several smaller ones that provide procedures, money, or incentives for …

Ownership Of Electronic Rights And The Private International Law Of Copyright, Jane C. Ginsburg

Faculty Scholarship

When, in response to a French decision upholding the rights of employee journalists to prevent the publisher's unauthorized licensing of electronic rights in the journalists' articles, French newspaper publishers yearn for "American-style copyright," they must imagine a work-made-for-hire nirvana in which publishers dispose of all rights in contributions to their periodicals, heedless of (and legally shielded from) authors' pesty claims for payment or control. To the extent that the work-made-for-hire doctrine applies, the publishing paradise conjured up by these French fantasies of law "reform" is very real indeed. Under U.S. copyright law, employee creators are not statutory "authors;" their employer …

Deutsche Telekom, German Corporate Governance, And The Transition Costs Of Capitalism, Jeffrey N. Gordon

Faculty Scholarship

In November 1996, Deutsche Telekom AG, the government-owned German telephone company, sold common stock representing approximately 25 percent of the company in a global stock offering that raised approximately DM 20 billion ($13 billion), the largest equity offering ever in Europe. In selling off this equity stake, the German government (i.e., the Federal Republic) had a number of motives. First, the sale was an important step in converting a government-run telephone monopoly into a nimble competitor in the emerging European and world telecommunications market. In anticipation of a fully competitive European telecommunications regime in 1998, Deutsche Telekom ("DT") had been …

Why Now Is Not The Time For Constitutional Amendment: The Limited Reach Of City Of Boerne V. Flores, Kent Greenawalt

Faculty Scholarship

When the Supreme Court eviscerated the protection of the Free Exercise Clause in Employment Division v. Smith, religious groups and individuals dismayed by the decision chose to pursue statutory relief rather than a constitutional amendment. Now that the Supreme Court has decided in City of Boerne v. Flores that the resulting statute, the Religious Freedom Restoration Act (RFRA or the "Act"), cannot be justified as a congressional exercise of power under the Fourteenth Amendment, many who care deeply about religious liberty may turn to the amendment process as an alternative. Although disappointed by the Flores decision, I believe it is …

Religious Law And Civil Law: Using Secular Law To Assure Observance Of Practices With Religious Significance, Kent Greenawalt

Faculty Scholarship

Civil law in the United States rarely helps to enforce religious standards or demands that people perform actions whose significance relates to religious obligations. Yet, some American states do have such involvement with certain observances of Orthodox and Conservative Judaism. Many states enforce kosher requirements, to which Orthodox and some Conservative Jews adhere. The laws, which penalize fraud in the labeling of products as kosher, serve the secular interest in preventing deception of consumers. However, the laws also force the state to decide when religious regulations have been violated.

Orthodox and Conservative Jewish divorces raise a second kind of involvement. …

The Great Transformation Of Regulated Industries Law, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on whether the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most clearly in …

The Fall And Rise Of Criminal Theory, George P. Fletcher

Faculty Scholarship

These are good times – at least for the theory of criminal law. This special issue of Buffalo Criminal Law Review testifies to a remarkable surge of interest among younger scholars in perennial questions: Why should we punish offenders? Do we require a human act as a precondition for liability and what is its structure? What does it mean for someone to be guilty or culpable for committing an offense? How do we avoid contradictions in structuring the criteria of liability? The time has come for renewed intensity in pondering and discussing these basic issues.

The contributions of this symposium …

Dogmas Of The Model Penal Code, George P. Fletcher

Faculty Scholarship

The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is …

Hearsay Hazards In The American Criminal Trial: An Adversary-Oriented Approach, Gordon Van Kessel

Faculty Scholarship

No abstract provided.

Understanding The Presumption Against Extraterritoriality, William S. Dodge

Faculty Scholarship

No abstract provided.

The Crisis In The Ideology Of Crime, John L. Diamond

Faculty Scholarship

No abstract provided.

Trust Law In The United States. A Basic Study Of Its Special Contribution, Ugo Mattei, Henry Hansmann

Faculty Scholarship

No abstract provided.

Truth, With A Small "T", David L. Faigman

Faculty Scholarship

No abstract provided.

Aviation Products Liability For Manufacturing And Design Defects: Two Recent Developments, David I. Levine, Carel J. Stolker

Faculty Scholarship

No abstract provided.

Our Administrative System Of Criminal Justice, Gerard E. Lynch

Faculty Scholarship

Bill Tendy was already a legend among federal prosecutors when I first served as an Assistant United States Attorney for the Southern District of New York in the early 1980s. To us youngsters, Bill even then seemed a survivor from another era, when prosecutors really did resemble the tough-talking Hollywood DAs played by actors like Brian Donleavy – while we felt more like insecure young lawyers who should be played by Michael J. Fox or Calista Flockhart.

Partly, of course, this was just a function of age and experience; hard as it was to imagine, there must have been a …

Toward Understanding Global Governance: The International Law And International Relations Toolbox, Charlotte Ku, Thomas George Weiss

Faculty Scholarship

No abstract provided.

Law And Economics And Tort Law: A Survey Of Scholarly Opinion, Andrew P. Morriss, John C. Moorhouse, Robert Whaples

Faculty Scholarship

Recent litigation brought against cigarette manufacturers, software companies over potential year 2000 computer problems, and a fast food restaurant for serving coffee that was allegedly too hot reminds us of the importance and dynamic nature of tort law in the United States. Judging from ongoing coverage by newspapers and television, tort law is newsworthy. Yet, as with other legal issues, it is within the covers of law reviews and specialty journals in economics that much of the debate over the social utility of various tort rules and their reform takes place. In that debate law and economics exercises great influence. …

Implications Of Second-Best Theory For Administrative And Regulatory Law: A Case Study Of Public Utility Regulation, Andrew P. Morriss

Faculty Scholarship

Compared to early twentieth century policy analysts, we have available today extensive tools of "comparative institutional analysis,'' increasingly sophisticated economic models,3 vastly increased and widely distributed computing power, and gigabytes of data. Despite all this, we simply have not come to grips with the implications of second-best theory for regulatory interventions. Moreover, policy must address not only the economic implications of second-best theory but the legal and political implications as well: policymakers must consider the interaction of potential shortcomings of the legal and political tools available when they design the solutions to be implemented with those tools.

The failure to …

What Should Lawyers Know About Economics, Robert Whaples, Andrew P. Morriss, John C. Moorhouse

Faculty Scholarship

To find out what law-and-economics scholars and economists think lawyers should know about economics, we conducted surveys of random samples of members of the American Law and Economics Association and the American Economic Association. We posed two questions to both groups: What do you think are the five most important economic concepts law students ought to learn in a law-and-economics course?

Law-and-economics courses sometimes include economics articles in their reading lists. If you could choose up to five articles for such a course, what would they be?

Miners, Vigilantes & Cattlemen: Overcoming Free Rider Problems In The Private Provision Of Law, Andrew P. Morriss

Faculty Scholarship

Law is a good like food, insurance, or housing. Like other goods, it can and often should be provided by private entities. Yet law is usually regarded as the quintessential public good, so obviously public in nature that we need not even discuss its provision by anyone but the State. As Bruce Benson observed "[a]nyone who would even question the 'fact' that law and order are necessary functions of government is likely to be considered a ridiculous, uninformed radical by most observers." Even William Landes and Richard Posner, hardly apologists for the State, have concluded that law often must be …

Decius S. Wade's The Common Law, Andrew P. Morriss

Faculty Scholarship

Decius S. Wade played important roles in Montana's legal history as Chief Justice of the Territorial Supreme Court (1871- 1887), member of the Code Commission (1890-1895), and prominent lawyer. Wade wrote The Common Law sometime in late 1894 or early 1895 for a February 1895 address to Helena bar members celebrating the 1895 passage of the Civil, Political, Penal, and Civil Procedure Codes by the Montana Legislature. Although I disagree with much of Wade's analysis, his manuscript deserves attention now for two reasons.

First, Wade played a critical role in the development of Montana's legal system and his views on …

Charting The Influences On The Judicial Mind: An Empirical Study Of Judicial Reasoning, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Faculty Scholarship

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law, mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical …