Digital Commons Network^™

An Open Letter To Congressman Gingrich, Bruce Ackerman, Akhil Amar, Jack Balkin, Susan Low Bloch, Philip Chase Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein, Harry Wellington

Faculty Scholarship

We urge you to reconsider your proposal to amend the House Rules to require a three-fifths vote for enactment of laws that increase income taxes. This proposal violates the explicit intentions of the Framers. It is inconsistent with the Constitution's language and structure. It departs sharply from traditional congressional practice. It may generate constitutional litigation that will encourage Supreme Court intervention in an area best left to responsible congressional decision.

Unless the proposal is withdrawn now, it will serve as an unfortunate precedent for the proliferation of supermajority rules on a host of different subjects in the future. Over time, …

Political Correctness In Jury Selection, George P. Fletcher

Faculty Scholarship

The values of equality and freedom are in constant tension, or so some think. The more society stresses equality, the less freedom people have. For example, Bruce Ackerman would abolish inheritance in his utopian society to insure that every generation begins on an equal footing. Many commentators have advocated restrictions on pornography and hate speech in order to protect the likely targets of these traditionally protected uses of free speech. Additionally, Catharine MacKinnon has invoked the principle of equality in the form of protecting disempowered minorities to argue for a restriction on liberty and freedom. Conversely, the more economic freedom …

Rights And Politics, Joseph Raz

Faculty Scholarship

It is an honour to join you today in celebrating Professor Jerome Hall. Professor Hall's work was ahead of its time. I did not know him, but his independence of mind and his spirited devotion to scholarship were striking in all I heard and read. Professor Hall's fame was at its height when I was beginning my research into the philosophy of law. And his name stood out as among the most distinguished American jurisprudential scholars. It stood out for his good sense, balanced judgment, and strong-minded convictions. His Foundations of Jurisprudence is thoroughly resistant to fashion. It is an …

Knowledge Transfer: Suggestions For Developing Countries On The Receiving End, Tamar Frankel

Faculty Scholarship

Developing countries have a substantial and urgent need for knowledge transfers to perform certain services and tasks because their people do not possess this knowledge.' To obtain it, these countries can choose from essentially three options. One option is to use foreign consultants already knowledgeable to perform the desired tasks. A second option is to use foreign teachers, in class or guided practice. The people in the country would then acquire the knowledge and perform the tasks. A third option is to use a mix of the services of consultants and teachers.

Copyright Liability Of Bulletin Board Operators For Infringement By Subscribers, Maureen A. O'Rourke

Faculty Scholarship

As people move onto the Information superhighway in increasing numbers, novel legal Issues arise that challenge the adequacy of existing common law and statutory authority to address new uses of Information technologies. In particular, legal actions involving the liability of electronic bulletin board system operators for acts of their subscribers have begun to proliferate.

Fee Shifting And Predictability Of Law, Keith N. Hylton

Faculty Scholarship

Lawyers are trained to distinguish between substance and procedure. The substantive law is comprised of standards, such as the Learned Hand formula of negligence, that are used to determine whether a violation of the law has occurred. Procedural rules, on the other hand, determine whether and under what conditions a party can bring suit or be joined in an ongoing suit, the conditions under which a decision may be appealed, the burden of proof, and the allocation of legal expenses.

Linguistics And Legal Epistemology: Why The Law Pays Less Attention To Linguists Than It Should, Gary S. Lawson

Faculty Scholarship

Law and linguistics ought to be natural partners. Modem statutory and constitutional interpretation increasingly focuses on the generally accepted public meaning of legal language. Even persons who do not believe (as I do) that some form of public understanding of the relevant text is the end all, if not quite the be-all, of such interpretation are likely to regard the public understanding of statutory language as at least one relevant factor in legal interpretation. And who better than linguists to inform the law about the true facts regarding public usage and understanding of legal language?

The Health Of The President And Presidential Candidates: The Public's Right To Know, George J. Annas

Faculty Scholarship

In July 1995, presidential candidate Robert Dole celebrated his 72nd birthday by releasing a detailed nine-page summary of his medical records. His personal physician told the press that despite the serious wounds Dole received during World War II, which left his right arm paralyzed and required the removal of one kidney, and despite his 1991 surgery for prostate cancer, his health was “excellent.” Dole was also photographed on his treadmill.

Women And Children First, George J. Annas

Faculty Scholarship

In the lore of the sea there are few events that have so exemplified heroism and self-sacrifice as the acts of the soldiers and sailors of the British ship Birkenhead when it sank in 1852. The soldiers of the 74th Highland Regiment stood at attention on deck (with the band playing) “while the women and children were saved and the captain very properly went down with his ship.” More than 450 lives were lost, and the phrase “women and children first” was introduced into the language as part of the “Birkenhead drill.” As Kipling put it in his poem …

Medicine, Death, And The Criminal Law, George J. Annas

Faculty Scholarship

Errors in medicine are common and are at least partly responsible for the deaths of 180,000 patients a year. There is increasing concern about medical errors and the steps that should be taken to prevent them.Until recently, hospitals have addressed errors after the fact, through mortality and morbidity conferences, incident reports, and the like, rather than before the fact, through attention to systems defects and prevention. Likewise, medical-malpractice litigation can be filed only after an injury has occurred. Malpractice litigation is intended to create incentives to improve the quality of medical care by making physicians and hospitals accountable for their …

Reframing The Debate On Health Care Reform By Replacing Our Metaphors, George J. Annas

Faculty Scholarship

Metaphors matter, as our sterile debate on the fi-nancing of health insurance demonstrates so well. In that debate the traditional metaphor of American medicine, the military metaphor, was displaced by the market metaphor in public discourse. Metaphors, which entice us to understand and experience “one kind of thing in terms of another . . . play a central role in the construction of social and political reality.” The market metaphor proved virtually irresistible in the public arena and led Congress to defer to market forces to “reform” the financing of health insurance in the United States.

Insurance Risk Classification After Mcgann: Managing Risk Efficiently In The Shadow Of The Ada, Maria O'Brien

Faculty Scholarship

A significant part of the health insurance debate which gripped the country during the first two years of President Clinton's administration focused on the critical shortage of employer-sponsored health insurance for disabled, br high risk, employees. Indeed, President Clinton's promise of universal access in connection with the promotion of his health care plan is apparently designed to ensure that the increasingly popular employer practice of excluding high risk employees becomes obsolete. In the meantime, while the merits of the Clinton plan and its competitors are debated, individuals like John McGann-working and insured--continue to discover that like their health, their insurance …

Feasting While The Widow Weeps: Georgine V. Amchen Products, Inc., Susan P. Koniak

Faculty Scholarship

This Article tells the story of Gerogine v. Amchem Products, Inc., a class action involving asbestos-related personal injury claims. Georgine was filed in federal district court on January 15, 1993. On the same day, class counsel and the lawyers for the defendants filed a proposed settlement with the court. The court authorized notice to the class, allowed a period for opt-outs, recognized objectors to the settlement, ordered discovery proceedings, held a fairness hearing, and, in August 1994, approved the settlement. The objectors to the settlement retained me to testify as an expert witness on the ethics of class counsel.

Illusion And Reality In International Forum Selection, William W. Park

Faculty Scholarship

The text of a legal rule is often less important than the context of its interpretation and application. If a dispute between an American buyer and a French seller were to come before a French court, the buyer might be apprehensive not so much from any fearful oddity of French law, but because the adjudicatory procedure arguably gave the French side a "home court advantage." In some other countries, the integrity or independence of the judiciary may also be a matter of concern. In an international transaction, the absence of any reasonably neutral forum with compulsory jurisdiction makes the consequences …

Inviolability And Privacy: The Castle, The Sanctuary, And The Body, Linda C. Mcclain

Faculty Scholarship

This article explores the idea and imagery of inviolability. I use a trilogy of terms-the castle, the sanctuary, and the body-to illuminate different loci of inviolability and to show how notions of sacredness and sanctity undergird the legal protection of inviolability. These images, familiar from privacy jurisprudence, provide a useful lens through which to examine the association between inviolability and gender. Familiar feminist critiques suggest that concepts such as privacy have served to deny, rather than to secure, inviolability for women and women's bodies. I explore the interplay of inviolability and privacy in some prominent feminist accounts of sexuality, and …

Drawing The Boundary Between Copyright And Contract: Copyright Preemption Of Software License Terms, Maureen A. O'Rourke

Faculty Scholarship

The Copyright Act of 19761 (the "Act") sought to clarify the boundary between federal and state enforcement of proprietary rights in works of authorship by specifically addressing federal preemption of state law causes of action in § 301 of the Act. Unfortunately, § 301 is not a model of clarity, and its legislative history is also cloudy. Consequently, the courts have had some difficulty in formulating consistent decisional guidelines in preemption cases. This difficulty has perhaps been most evident in cases in which the particular preemption issue is based not on a state statute but on state enforcement of private …

The Case Against Regulating The Market For Contingent Employment, Maria O'Brien

Faculty Scholarship

No abstract provided.

Fiduciary Duties As Default Rules, Tamar Frankel

Faculty Scholarship

This Article consists of four parts. Part I draws a profile of fiduciary relationships. It also explains the different responses of fiduciary and contract rules to the different problems that the relationships pose regarding: (1) the right of one party to rely on the other and the specific duties of loyalty and care, which mirror these rights; and (2) the events that trigger the application of fiduciary rules. Finally, it compares contract with fiduciary rules. The reasons for the existence of fiduciary rules suggest that, when in conflict, they trump the rules governing other parallel relationships, including contracts.

Part II …

Lani Guinier And The Dilemmas Of American Democracy, Richard Briffault

Faculty Scholarship

Lani Guinier, an experienced voting rights litigator and a professor of law at the University of Pennsylvania Law School, first came to national attention in the spring of 1993 when President Clinton nominated her to be assistant attorney general for civil rights. Labelled a "quota queen" by the Wall Street Journal, Guinier became the target of a fervent campaign to block her nomination. For several weeks, Guinier's law review articles on voting rights were the focus of a fierce national debate. Politicians and pundits expounded on her publications and spread snippets from her scholarship across the front pages and opinion …

Class Wars: The Dilemma Of The Mass Tort Class Action, John C. Coffee Jr.

Faculty Scholarship

Legal change – like organic evolution – can occur at varying paces. Long periods of gradual evolution are sometimes punctuated by brief moments of rapid, irregular change. Recent developments in class action practice bear witness to this phenomenon: during the 1990s, evolution has given way to mutation. At least with respect to mass torts, the development of the class action had been slow and halting. Well into the 1980s, federal courts uniformly resisted attempts to certify such mass tort class actions, largely out of concern that the interests of the individual litigant would be submerged within any large-scale proceeding. By …

Reflections On A Case (Of Motherhood), Jane M. Spinak

Faculty Scholarship

She surveyed my office for signs of conspiracy. We had had two or three telephone conversations that had conveyed my ambivalence about representing her. A former colleague had urged her to call the clinic for help but I was reluctant to accept her case for the clinic: we rarely represented foster parents and the procedural complexity of the case convinced me that I would be unable to assign students to represent this client so late in the semester. I was resigned, however, to help her find a lawyer, both because a former colleague had sent her and because the snippets …

Putting Cars On The "Information Superhighway": Authors, Exploiters, And Copyright In Cyberspace, Jane C. Ginsburg

Faculty Scholarship

The advent of the "Information Superhighway" has sparked much speculation about the roles of authorship, of readership, and of literary property in the vast system of interlinked computer networks that has come to be known as "cyberspace." Through computers linked to a digital network, users can access and add to vast quantities of material. At least in theory, every computer user can become his, or her own publisher, and every terminal can become a library, bookstore, or audio and video jukebox.

The prospect of pervasive audience access to and ability to copy and further disseminate works of authorship challenges the …

Paint-By-Numbers Tax Lawmaking, Michael J. Graetz

Faculty Scholarship

Although their meaning and contours have long been controversial, the general criteria for evaluating changes in tax law enjoy both stability and consensus. At least since Adam Smith, there has been virtually universal agreement that the nation's tax law should be fair, economically efficient, and simple to comply with and to administer. Tax law changes should be designed to make the law more equitable, easier to comply with, more conducive to economic growth, and less likely to interfere with private economic decisionmaking.

Precisely what these criteria imply for policymaking is controversial, however. Fairness is often said to require that people …

Distinguishing Between Consensual And Nonconsensual Advantages Of Liability Rules, Ian Ayres, Eric Talley

Faculty Scholarship

Louis Kaplow and Steven Shavell's thoughtful reply to our recent article contains powerful insights about the relative efficiency of liability and property rules. While we are in agreement that liability rules can be more efficient than property rules when transaction costs are low, we disagree about the cause of this liability-rule advantage. Kaplow and Shaveli believe that liability rules hold only a nonconsensual advantage over property rules (i.e., liability rules tend to induce efficient nonconsensual takings). While granting this oftrecognized nonconsensual advantage, we contend that liability rules may also have a consensual advantage in low-transaction-cost settings (i.e., liability rules facilitate …

Regulatory Decisionmaking In The European Commission, George A. Bermann

Faculty Scholarship

As an institution variously described as the "motor" or "engine" of European integration and as the European Union's "executive branch," the Commission of the European Communities finds itself at the center of Community decisionmaking. Yet its decisional processes are still quite poorly understood, at least in the United States. The relatively poor grasp of Commission decisionmaking is certainly not due to any general lack of interest in procedure within the American audience. The problem lies more in the highly restrictive view of decisionmaking that traditionally dominates procedural accounts of the Community institutions. Those accounts have tended to reflect three preoccupations. …

Foreword, George A. Bermann

Faculty Scholarship

The appearance of the Columbia Journal of European Law is a response to the phenomenal growth of interest in European law among Americans; it will also prove, I hope, to stimulate still further growth in that interest. European law has traditionally played a key role in comparative law teaching and writing in this country, due in part to Europe's deep civil law roots, and it continues to play that role. At the same time, European law figures prominently in the conduct of international transactions and the practices of international trade. Finally, the European Community has proved to be a powerful …

Domestic And International Copyright Issues Implicated In The Compilation Of A Multimedia Product, Jane C. Ginsburg

Faculty Scholarship

Suppose an entrepreneur wishes to create an interactive multimedia product on the theme of the Exploration of Space. The multimedia work would assemble components created specially for the product, and others drawn from preexisting works. The latter might include: Leonardo da Vinci drawings of aeronautical machines, archival photographs of early airplanes, excerpts from 19th and 20th century science-fiction novels, text and photos of newspaper accounts of space flights, NASA space maps, television news clips, excerpts of motion pictures and television series, and musical compositions and recordings. Elements specially created for the product might comprise the computer program users would employ …

The "Language Of Law" And "More Probable Than Not": Some Brief Thoughts, Kent Greenawalt

Faculty Scholarship

By far the most testy moments of the conference arose out of the following problem. The Supreme Court had interpreted "knowingly" in a criminal statute regulating interstate commerce of child pornography to cover the age of participants, even though the placement of knowingly" in the statutory provision would, according to standard usages of English grammar, lead to its not being applied to that element of the crime. All participants at our conference fairly quickly acknowledged the following two truths: (1) the Court's construction did not fit ordinary English grammar, and (2) there might be appropriate (legal) reasons why statutory construction …

U. S. Social Welfare Policy, Lance Liebman

Faculty Scholarship

Professor Alstott's paper tells an important story about the current moment in American federalism as interpreted through the lens of the social welfare system. From its beginning in 1935, Aid to Families with Dependent Children (AFDC) was the most important intellectual ingredient in the American commitment (or not) to poor families. AFDC was called an exercise in "cooperative federalism." States established and administered programs, receiving reimbursement for roughly fifty percent of their expenditures from the national government, which, however, imposed certain programmatic conditions.

Since the Republicans took control of Congress in the 1994 elections, Congress has emphasized two themes: cutting …

European Community Law From A U.S. Perspective, George A. Bermann

Faculty Scholarship

Although less than forty years have passed since the founding of the European Economic Community (now the European Community), the lifetime of the Community is well marked temporally. The term of each Commission furnishes a convenient time-line for measuring the Community's progress in legal integration. Since the 1970s, each year has been punctuated by two or more "summit" meetings of heads of state or government. These summits not only are key markings in their own right, but also furnish an occasion for additional monitoring of the Community's state of health. Throughout the 1970s and into the 1980s, the Community submitted …