Digital Commons Network^™

Religious Liberty And Democratic Politics, Kent Greenawalt

Faculty Scholarship

Some time ago, President Clinton talked to a gathering of religious journalists about abortion. He said that he did not believe that the biblical passages often cited by those who are "pro-life" indicate· clearly that abortion is wrong and should be prohibited. The reasons many people have for wanting abortion to be prohibited, or for allowing abortion, relate to their religious convictions. These people, for the most part, regard it as perfectly appropriate that religious perspectives help determine public policy on abortion in the United States. Others object. They say that the religious views of some people should not be …

Acknowledgments, George A. Bermann

Faculty Scholarship

On April 11-12, 1996, members of the law faculties at Johann Wolfgang Goethe-Universität and Columbia University met in New York for the Second Frankfurt-Columbia Symposium on Comparative Law, once again dealing with issues of regulatory federalism and harmonization of laws in comparative perspective. The first symposium took place in Frankfurt a year earlier, and it was our great pleasure to host our German colleagues and return in some small measure the hospitality that they had shown us the previous year. I would particularly like to thank my good friend and colleague Prof. Dr. Ingolf Pernice (now of the law faculty …

The Legal Environment Of International Finance: Thinking About Fundamentals, Merritt B. Fox

Faculty Scholarship

The huge increase in cross border capital flows over the last two decades has profoundly important implications for society in general and the law in particular. These flows give rise to a set of legal problems that are sufficiently distinct and coherent to constitute a legal field of their own. Confirming this observation is the development of a specialized legal practice whose members spend the bulk of their time working on such transactions. Nevertheless, a law school course in international finance is a rarity, even at the schools that train most of the students who ultimately join this practice.

The …

Feminism And “Safe Subjects Like The Tax Code”, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

Appropriatating Form: A Comment On Summers, “How Law Is Formal And Why It Matters”, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Individualizing Justice Through Multiculuralism: The Liberals’ Dilemma, Doriane Lambelet Coleman

Faculty Scholarship

No abstract provided.

Irreducible Constitution, The 1996 Jcli Religion Symposium, Abner S. Greene

Faculty Scholarship

No matter how hard they try, some constitutional theorists can't avoid being, at bottom, either democratic-foundationalists ("democrats") or rights-foundationalists. In the first part of this essay, I will offer a third way, insisting that at the heart of the American constitutional order is an irreconcilable conflict between these divergent accounts, that attempts to predicate constitutionalism on either democracy or rights cannot succeed. Our constitution (a term I will use to mean our constitutional order--text plus ... ) is, at the core, coreless. It cannot be resolved to a master predicate. It cannot be reduced to democracy or to rights. It …

Jewish Lawyer's Question, The Essay, Russell G. Pearce

Faculty Scholarship

Martin Buber describes the question of how to "affirm" our Jewish identity in the modem world as "the personal Jewish question, the root of all Jewish questions, the question we must discover within ourselves, clarify within ourselves, and decide within ourselves. This essay raises the "Jewish question" for lawyers. First, it explores some reasons why Jewish lawyers answer the question by separating their professional selves from their religious selves. Second, it observes that such an answer is contrary to the perspective-rooted in tradition but also common to the otherwise dissonant streams of Judaism today-that one's Judaism enters every moment of …

Congressional Control Of The Courts: A Theoretical And Empirical Analysis Of Expansion Of The Federal Judiciary, John M. De Figueiredo, Emerson H. Tiller

Faculty Scholarship

Congress has many available tools to influence the federal judiciary. In this article, we consider Congress' ability to balance, or stack, the courts through the creation of federal judgeships. While caseload pressure often produces the need for more judgeships, we demonstrate that political party alignment between Congress and the president often determines the timing of the judicial expansion. The net effect of expanding during political alignment is to speed up changes in the political balance of the judiciary in favor of the current Congress. We also examine the determinants of expansion size and show that both political alignment and caseload …

Legal Issues Presented By A Pilot International Greenhouse Gas (Ghg) Trading System, Jonathan B. Wiener, Richard B. Stewart, Philippe Sands

Faculty Scholarship

No abstract provided.

Sexual Orientation And Human Rights: Toward A U.S. And Transnational Jurisprudence, Laurence R. Helfer, Alice M. Miller

Faculty Scholarship

No abstract provided.

Local Government And The New York State Constitution, Richard Briffault

Faculty Scholarship

On November 4, 1997, the question "Shall there be a convention to revise the [state] constitution and amend the same?" will be submitted to the New York state electorate pursuant to the provision in the state constitution requiring that every twenty years the voters be given the opportunity to call for a constitutional convention. A longstanding constitutional concern in New York is local government and the relations between local governments and the State. With an eye to the upcoming vote on whether to hold a constitutional convention, this paper examines the place of local government and state-local relations in the …

Public Finance In The American Federal System: Basic Patterns And Current Issues, Richard Briffault

Faculty Scholarship

Public finance issues with significant consequences for American federalism have been at the top of the political agenda for the last several years. Indeed, much of the current debate about American federalism has been explicitly about questions of public finance: Which level of government should pay for which programs? What is to be the relationship between financial responsibility and policy-making authority? Should there be some overall limitation on government outlays and receipts?

Thus, one of the first actions of the 104th Congress was passage of a measure, swiftly signed into law by the President, to curb the ability of the …

The Sovereign Immunity Exception Comment, Henry Paul Monaghan

Faculty Scholarship

Seminole Tribe v. Florida is the 1995 Term's illustration of the importance that a narrow, but solid, five-Justice majority of the Supreme Court attaches to the constitutional underpinnings of "Our Federalism." In Seminole Tribe, this majority declared that Congress lacks authority under its Article I, Section 8 regulatory powers to subject unconsenting states to suits initiated in federal court by private persons. The very same majority had previously made clear its intention to implement the original constitutional understanding of a national government of limited powers, especially when the national government attempted to "commandeer" state legislative and administrative processes. This …

Bork V. Burke, Thomas W. Merrill

Faculty Scholarship

I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of our society." …

Should Lawyers Obey The Law?, William H. Simon

Faculty Scholarship

At the same time that it denies authority to nonlegal norms, the dominant view of legal ethics (the "Dominant View") insists on deference to legal ones. "Zealous advocacy" stops at the "bounds of the law."

By and large, critics of the Dominant View have not challenged this categorical duty of obedience to law. They typically want to add further public-regarding duties, but they are as insistent on this one as the Dominant View.

Now the idea that lawyers should obey the law seems so obvious that it is rarely examined within the profession. In fact, however, once you start to …

Corporate Governance And Economic Efficiency: When Do Institutions Matter?, Ronald J. Gilson

Faculty Scholarship

Until the 1980s, corporate governance was largely the province of lawyers. It was a world of specific rules – more or less precise statutory requirements governing shareholder meetings, the election of directors, notice requirements and the like – that were essentially unrelated to what corporations actually do. From this perspective, the corporation's productive activity was simply a black box onto which standard governance structures were superimposed with little effect on what took place within. Corporate law was "trivial" or, as Bayless Manning so evocatively portrayed it, simply "great empty corporation statutes – towering skyscrapers of rusted girders internally welded together …

Facilitating Choice: Judging The Physician's Role In Abortion And Suicide, George J. Annas

Faculty Scholarship

When I was invited to give this talk I thought, "I'll just give my standard slide show on death in America." I thought I would just talk about the right to die, something I can do in my sleep, and everybody would be happy. And you probably would, since it's a pretty good speech. I am going to give it at a Pennsylvania Judges Conference in a couple of weeks, and they will like it. But it is not very challenging, either for me or for you. So, what I want to explore with you today is how judges have …

The Right To Die In America: Sloganeering From Quinlan And Cruzan To Quill And Kevorkian, George J. Annas

Faculty Scholarship

The topic of my talk is different from those you have been dealing with in this conference in one critical aspect-it's one that all of us are going to confront-we're all going to die. And death is not a subject anyone can escape because it has both professional implications-what the law should be, how we should decide disputes when they arise, and practical ones-how we should order our own lives, and what we should do to try to make our death easier if not on ourselves, at least on our loved ones.

Cowboys, Camels, And The First Amendment: The Fda's Restrictions On Tobacco Advertising, George J. Annas

Faculty Scholarship

The Marlboro Man and Joe Camel have become public health enemies number one and two, and removing their familiar faces from the gaze of young people has become a goal of President Bill Clinton and his health care officials. The strategy of limiting the exposure of children to tobacco advertisements is based on the fact that almost all regular smokers begin smoking in their teens. This approach is politically possible because most Americans believe that tobacco companies should be prohibited from targeting children in their advertising.

The Promised End: Constitutional Aspects Of Physician-Assisted Suicide, George J. Annas

Faculty Scholarship

The debate over physician-assisted suicide has dramatically shifted to a discussion of constitutional issues. This spring, within a month of each other, U.S. Circuit Courts of Appeals on both coasts ruled that state prohibitions of assisted suicide are unconstitutional when applied to physicians who prescribe lethal medication for terminally ill, competent adults who wish to end their lives. The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, and the Second Circuit includes New York, Connecticut, and Vermont. Both courts reached the same conclusion but for different legal reasons.

Medicine And Human Rights: Reflections On The Fiftieth Anniversary Of The Doctors’ Trial, George J. Annas, Michael A. Grodin

Faculty Scholarship

1996 marks the fiftieth anniversary of the commencement of the trial of Nazi physicians at Nuremberg, a trial that has been variously designated as the "Doctors' Trial" and the "Medical Case." In addition to documenting atrocities committed by physicians and scientists during WWII, the most significant contribution of the trial has come to be known as the "Nuremberg Code," a judicial codification of 10 prerequisites for the moral and legal use of human beings in experiments. Anniversaries provide us with an opportunity to reflect upon the past, but they also ena ble us to renew our efforts to plan for …

The Promised End — Physician-Assisted Suicide And Abortion, George J. Annas

Faculty Scholarship

The debate over late term intact dilation and evacuation abortions (so-called "partial birth" abortions) has been an uncomfortable one for those in the pro-choice community.' Although the United States Senate narrowly refused to override President Clinton's veto of a bill criminalizing this procedure, many in Congress agreed with Senator Daniel Patrick Moynihan (D-N.Y.) that it was "as close to infanticide as anything I have come upon." States have a compelling interest in preventing infanticide that is not contradicted by a woman's constitutional right to decide whether to continue a pregnancy. Similarly, states have a legitimate and perhaps even compelling interest …

Questing For Grails: Duplicity, Betrayal And Self-Deception Postmodern Medical Research, George J. Annas

Faculty Scholarship

Contemporary physicians and scientists often describe their experi-
ments as part of a search for the "Holy Grail." Sometimes this quest is
expressed more specifically, as when the Human Genome Project is de-
scribed as a search for the "Holy Grail of biology."1 This rhetoric sug-
gests that experimental work is holy, God's work, and that the results will
prove miraculous and good for everyone. But this type of blind devotion
produces uncritical action that can ultimately destroy values essential to
human dignity.

Implications Of Mill's Theory Of Liberty For The Regulation Of Hate Speech And Hate Crimes, Keith N. Hylton

Faculty Scholarship

The notion that utilitarianism cannot support a theory of fundamental rights is a recurring source of conflict in law and philosophy.' Those who adhere to this view argue that a utilitarian or consequentialist approach cannot provide a stable, permanent justification for rights: at any moment, the utilitarian calculus might conclude that what it considered a right yesterday, actually reduces total welfare, and therefore is not a right today. Perhaps no one has gone further in attempting to refute this claim than John Stuart Mill.' As a result, any effort to construct a consequentialist theory of fundamental rights must draw at …

A Missing Markets Theory Of Tort Law, Keith N. Hylton

Faculty Scholarship

This Article provides a framework for reconciling the tension between tort doctrine and economic theory, and for addressing the general failure of economically oriented theories to come to grips with doctrine at a detailed level. My claim is that tort doctrine should be viewed as a response to the incompleteness of markets, or more generally the problem of missing markets. Because of market incompleteness, some of the benefits as well as costs associated with activities will be shifted or "externalized" to third parties. Tort doctrine reflects sensitivity to the externalization of benefits and costs. It can therefore be understood only …

Rule 68, The Modified British Rule, And Civil Litigation Reform, Keith N. Hylton

Faculty Scholarship

My aim in this paper is to examine the incentive effects of the proposed legislation, and the general desirability of nondiscretionary penalties as a method of controlling frivolous litigation. The proposed rule, which I will refer to below as the Modified British Rule, bears a close resemblance to Rule 68 of the Federal Rules of Civil Procedure. Rule 68 imposes court costs on the plaintiff who rejects a settlement offer and then receives a less favorable judgment. While Rule 68 is a nondiscretionary one-way penalty, the Modified British Rule is a nondiscretionary two-way penalty.

The System Worked: Our Schizophrenic Stance On Welfare, Robert L. Tsai

Faculty Scholarship

This is a review of Steven M. Teles's book, Whose Welfare? AFDC and Elite Politics (University Press of Kansas, 1996), which argues that welfare policy reflects a dynamic of elite dissensus, in which public policy fails to reflect popular opinion. I make two central points in the review: first, there are reasons to believe that welfare policy does, in fact, reflect a deeply conflicted American electorate; and second, such a conflict may reveal a healthy deliberative order struggling to reconcile changing priorities with enduring values.

Constitutional Tragedy In Dying: Responses To Some Common Arguments Against The Constitutional Right To Die, James E. Fleming

Faculty Scholarship

I shall argue for the constitutional right to die, including the right of terminally ill persons to physician-assisted suicide. Indeed, I shall argue that it would be a constitutional tragedy if the Supreme Court were to hold that the Constitution does not protect such a right to die,2 and thus to overrule the Ninth Circuit decision in Compassion in Dying v. Washington3 (to say nothing of the Second Circuit decision in Quill v. Vacco4). First, such a holding would entail that the Constitution sanctions a grievous wrong, a horrible form of tyranny: allowing the state to impose upon some citizens, …

Utility And Community: Musings On The Tort/Crime Distinction, Stephen G. Marks

Faculty Scholarship

In this Paper, I propose the following two step procedure to explain both the inclusion and exclusion of criminal utility. As a first step, I posit a full compliance utility function. This utility function includes all utilities for all activities and incorporates an assumption that all members of society will forego prohibited activities. Aa s preliminary matter, I will also presuppose common information and shared values within the community. I suggest that maximization of full compliance social utility determines what society prohibits. As a second step, I strip the social utility function of the utility from prohibited activities and drop …