Digital Commons Network^™

From The Editor: It’S The Network!, Richard A. Danner

Faculty Scholarship

No abstract provided.

Thinking To Be Paid Versus Being Paid To Think, Merritt B. Fox

Faculty Scholarship

In the first chapter of The Economic Structure of Corporate Law, Frank Easterbrook and Daniel Fischel make an arresting statement:

... [P]eople who are backing their beliefs with cash are correct; they have every reason to avoid mistakes, while critics (be they academics or regulators) are rewarded for novel rather than accurate beliefs. Market professionals who estimate these things wrongly suffer directly; academics and regulators who estimate wrongly do not pay a similar penalty. Persons who wager with their own money may be wrong, but they are less likely to be wrong than are academics and regulators, who are wagering …

Shouting Down The Voice Of The People: Political Parties, Powerful Pac's And Concerns About Corruption, Clarisa Long

Faculty Scholarship

The Federal Election Campaign Act limits the amount of financial support that political parties may give to candidates for federal office. Clarisa Long argues that these restrictions violate political parties' First Amendment rights of speech and association. Because the flow of money in the political process is a proxy for speech, the First Amendment requires that political actors have access to at least one unrestricted avenue of communication. While individuals' and PACs' First Amendment rights are protected because they may make unrestricted independent expenditures, parties do not have this opportunity. Courts have failed to protect party speech, rationalizing that the …

On Public Reason, Kent Greenawalt

Faculty Scholarship

Since the publication of A Theory of Justice in 1971, John Rawls has refined, qualified, and enriched his political philosophy, responding generously and with patient analytical care to difficulties posed by critics. Political Liberalism embodies the major developments in Rawls's thought during those two decades. Rawls continues to be a strong defender of political liberalism, but in various respects his philosophical claims are more modest than those he offered in 1971, and the political life he recommends involves more accommodation to the diverse perspectives and ways of life one expects to find in liberal democracies. In most of the chapters …

Brutality In Blue: Community, Authority, And The Elusive Promise Of Police Reform, Debra A. Livingston

Faculty Scholarship

In January 1994, President Clinton invited Kevin Jett, a thirtyone-year-old New York City police officer who walks a beat in the northwest Bronx, to attend the State of the Union Address. Jett stood for Congress's applause as the President called for the addition of 100,000 new community police officers to walk beats across the nation. The crime problem faced by Officer Jett and community police officers like him, the President said, has its roots "in the loss of values, the disappearance of work, and the breakdown of our families and communities." According to the Clinton administration, however, the police – …

By Reason Of Their Sex: Feminist Theory Postmodernism And Justice , Tracy E. Higgins

Faculty Scholarship

Both the Supreme Court's jurisprudence of gender and feminist legal theory have generally assumed that some identifiable and describable category of woman exists prior to the construction of legal categories. For the Court, this woman-whose characteristics admittedly have changed over time-serves as the standard against which gendered legal classifications are measured. For feminism, her existence has served a different but equally important purpose as the subject for whom political goals are pursued. To the extent that the definitions of the category diverge, the differences among definitions are played out in feminist critiques of the Court's gender jurisprudence, and, occasionally, in …

Chief Justice Rehnquist, Pluralist Theory, And The Interpretation Of Statutes, Thomas W. Merrill

Faculty Scholarship

Chief Justice William H. Rehnquist is often viewed as the ultimate "political" judge. According to Mark Tushnet, for example, "[o]ne could account for perhaps ninety percent of Chief Justice Rehnquist' s bottom-line results by looking, not at anything in the United States Reports, but rather at the platforms of the Republican Party." Nowhere is this attitude more prevalent than with respect to issues of statutory interpretation. When I informed colleagues I was working on an article about Chief Justice Rehnquist's theory of statutory interpretation, the almost universal response was: "What theory?"

Contrary to the common view that Chief Justice Rehnquist …

Environmental Commercial Law – Update On Seqra Lawsuits For 1994, Michael B. Gerrard

Faculty Scholarship

The Courts decided 57 cases1 in 1994 under the New York State Environmental Quality Review Act (SEQRA).2 As in prior years,3 this column presents a statistical summary of these cases and analyzes emerging trends. The 57 cases last year are about the same number as in 1993, but are down from the 70-75 seen annually in the early 1990s.

Treaty On Terminal Operator Liability In International Trade, Joseph Sweeney

Faculty Scholarship

No abstract provided.

The Qur’An And The Common Law: Islamic Law Reform And The Theory Of Legal Change (Part 1), Donald L. Horowitz

Faculty Scholarship

Part I of a two part article.

Repealing The Law Of Unintended Consequences? Comment On Walker (2), Thomas D. Rowe Jr.

Faculty Scholarship

Commentary on, Laurens Walker, Avoiding Surprise From Federal Civil Rule Making: The Role of Economic Analysis, 23 Journal of Legal Studies 569 (1994).

Hail Britannia?: Institutional Investor Behavior Under Limited Regulation, John C. Coffee Jr., Bernard S. Black

Faculty Scholarship

A central puzzle in understanding the governance of large American public firms is why most institutional shareholders are passive. Why would they rather sell than fight? Until recently, the Berle-Means paradigm – the belief that separation of ownership and control naturally characterizes the modern corporation – reigned supreme. Shareholder passivity was seen as an inevitable result of the scale of modern industrial enterprise and of the collective action problems that face shareholders, each of whom owns only a small fraction of a large firm's shares.

A paradigm shift may be in the making, however. Rival hypotheses have recently been offered …

The Sentencing Guidelines As A Not-So-Model Penal Code, Gerard E. Lynch

Faculty Scholarship

We are accustomed to thinking about the criminal law, and the procedures for enforcing it, as divided into two separate stages. The first stage – the subject of penal codes and jury trials – concerns the definition of culpable conduct and the adjudication of guilt. The second stage – sentencing – concerns the consequences of conviction for the offender. Only rarely do we acknowledge that the conventional separation of these stages into compartments is highly misleading.

The articles in this Issue of FSR address, in one way or another, the extent to which the concerns of the substantive criminal law …

Toward A New Deal Legal History, Eben Moglen

Faculty Scholarship

With this article, Barry Cushman continues the project begun in earlier writings, leading ultimately to a thoroughgoing reconsideration of the legal history of the New Deal. The present work, perhaps the most important to appear so far, brings Cushman's evolving argument up against the most stable – if not altogether the most convincing – element of the traditional history of the New Deal Court. The "Constitutional Revolution of 1937" is now open for reconsideration or, more precisely, the famous "switch in time" that realigned the Supreme Court with the demands of the Roosevelt administration. Cushman argues powerfully – by and …

The Role Of Existing Environmental Laws In The Environmental Justice Movement, Michael B. Gerrard

Faculty Scholarship

I will focus on what can and cannot be done under the existing statutory and regulatory structures and the common law to protect minority communities from environmental hazards. I will highlight some of the current holes in the legal system to suggest areas where statutory reform might be useful. Fights against these facilities break down between future unbuilt facilities, on the one hand, and existing facilities on the other hand.

A broad array of statutes regulates future facilities, such as landfills, incinerators, interstate highways, and polluting factories. Some of these laws are aimed at providing information and requiring the decision …

Curriculum Vitae (Feminae): Biography And Early American Women Lawyers, Carol Sanger

Faculty Scholarship

In this review, Carol Sanger examines the recent surge of interest in the lives of early women lawyers. Using Jane Friedman's biography of Myra Bradwell, America's First Woman Lawyer, as a starting point, Professor Sanger explores the complexities for the feminist biographer of reconciling for herself and for her subject conflicting professional, political, and personal sensibilities. Professor Sanger concludes that to advance the project of women's history, feminist biographers ought not retreat to the comforts of commemorative Victorian biography, even for Victorian subjects, but should instead strive to present and accept early women subjects on their own complex terms.

Echoes Of Tomorrow: The Road To Serfdom Revisited, Alex Kozinski, David M. Schizer

Faculty Scholarship

It is now half a century since Hayek published The Road to Serfdom. Much of our population was not even born when he wrote this terse, eloquent work – and a lot has happened since. A lifetime of conflict has raged over the ideas Hayek considered in his slender volume. Unimaginably destructive weapons have been aimed at the world's population centers, menacing the very survival of our species. Even under their shadow, we have seen revolutions reacting against the abuses Hayek identified. Millions have gained their freedom. Walls that seemed permanent came crashing down. We hope they stay down.

Our …

When Should Preventive Treatment Be Paid For By Health Insurance?, George J. Annas

Faculty Scholarship

In the national debate about who should have health insurance, surprisingly little attention has been focused on what medical services health insurance itself should cover. Historically, discussions of this topic have centered on concepts such as basic health care or medically necessary care. When the power of medical diagnosis and treatment was limited, these terms had boundaries as well. As physicians' diagnostic prowess has increased, however, especially in the area of genetics, such terms have become open-ended. To avoid predictable conflicts over benefit coverage, much more precise definitions will be required, so that patients and health care providers can understand …

Informed Consent, Cancer, And Truth In Prognosis, George J. Annas

Faculty Scholarship

Barbara Tuchman records that during the Black Death epidemic in the early 14th century, “doctors were admired, lawyers universally hated and mistrusted”. The great plagues and wars of the Middle Ages produced a “cult of death,” including a vast popular literature that had death as its theme. As the 20th century closes, our emphasis is on the denial of death, and the honest discussion of death remains rare both in popular literature and in conversations between physicians and patients. This is one reason why Shana Alexander shocked a national conference of bioethicists last year by saying, “I trust my lawyer …

Death By Prescription, George J. Annas

Faculty Scholarship

Society and physicians in the United States remain unable to accept death and thus unable to deal with the physical, psychological, and spiritual approach of death. The hour of death itself “is commonly tranquil,” but “the serenity is usually bought at a fearful price -- and the price is the process by which we reach that point” -- a process that has been described as “a purgatory that may last for weeks.” Suicide has been seen as a rational way to avoid that purgatory, especially as a response to end-stage cancer and AIDS, and proposals to “legalize” physician-assisted suicide in …

Asking The Courts To Set The Standard Of Emergency Care - The Case Of Baby K, George J. Annas

Faculty Scholarship

Almost two decades ago, Dr. Franz J. Ingelfinger predicted that if physicians kept turning to the courts “to resolve essentially medical matters,” the medical profession's unfortunate “dependence on the lawyer in reaching essentially medical decisions will continue”1. One can argue about what decisions are “essentially medical,” but the trend that worried Dr. Ingelfinger has continued, and now physicians and a hospital have sought legal and judicial guidance about how -- and whether -- to treat an anencephalic infant known as Baby K.

Scientific Evidence In The Courtroom: The Death Of The Frye Rule, George J. Annas

Faculty Scholarship

In one of the most anticlimactic cases in recent years, the Supreme Court ruled on the last day of its 1992-1993 term that federal judges should admit all relevant scientific testimony and evidence that is “reliable”. The result was so uncontroversial that both sides in the case said they were satisfied; because the result was also so vague, it will probably be years before its effect can be accurately ascertained. The facts of the case, Daubert v. Merrell Dow Pharmaceuticals, Inc., are somewhat more interesting than its prosaic legal conclusion.

The Empire Of Death: How Culture And Economics Affect Informed Consent In The U.S., The U.K., And Japan, George J. Annas, Frances H. Miller

Faculty Scholarship

Historically, most Americans have treated health care as a private commodity whose price, and therefore availability, is primarily determined by market forces. In such a context, the law not unsurprisingly places a high premium on information disclosure by physicians. Personal autonomy-an individual's power to choose among medical options-enjoys its most zealous protection under U.S. jurisprudence.⁷ The dominant U.S. version of informed consent is grounded on principles of patient/consumer autonomy, and seems to enhance market choice. But a strong theme of collectivism now runs through some discussions of U.S. health policy.⁸ President Clinton was elected at least in part …

Multiple Litigants With A Public Good Remedy, Robert C. Marshall, Michael J. Meurer, Jean-Francois Richard

Faculty Scholarship

Potential bidders are frequently excluded from participation in a federal procurement by the mandatory specifications or evaluation criteria in the bid solicitation. For certain procurements aggrieved bidders can protest inappropriate exclusions to a quasi-judicial board. We present a model where there are multiple potential litigants and the remedy is a public good. Equilibrium litigation can arise without decision errors by the court or information asymmetries. We show that protests can deter inappropriate exclusions but can also lead to undesirable settlement agreements. The free-rider problem created by the public good remedy can also cause voluntary revisions of an excessively restrictive bid …

The Constitutional Case Against Precedent, Gary S. Lawson

Faculty Scholarship

A recent, and characteristically illuminating, article by Professor Henry Monaghan confidently announces that "[p] recedent is, of course, part of our understanding of what law is."1 As a descriptive matter, Professor Monaghan is entirely correct. Legal analysis-by lawyers, courts, and academics-typically begins and ends with precedent. Law students are meticulously trained in the art of reading, applying, and distinguishing cases. Court pinions, including Supreme Court opinions, on constitutional matters frequently consist entirely of discussions of past decisions, without so much as a reference to the Constitution itself.' Even in this era of law-and-metatheory, case analysis is still the mainstay of …

Environmental "Remediation" Expenses And A Natural Interpretation Of The Capitalization Requirement, Theodore S. Sims

Faculty Scholarship

The income taxation of outlays for envi- ronmental restoration (or "remediation'') has become a hot topic once again. It elicited extensive consideration a decade ago, when the focus was on the treat- ment of expenses of surface mining re- clamation and nuclear power plant de- commissioning, now explicitly covered by Sections 468 and 468A of the Internal Revenue Code. As a formal matter, those specific matters are just examples, conspicuous by their size, of the more general question of how an income tax should account for "future costs." Al- though not currently controversial, sur- face mining affords a simple illustration. …

Discontinuities, Causation, And Grady's Uncertainty Theorem, Stephen G. Marks

Faculty Scholarship

In a series of articles, Mark Grady considers the problem of discontinuity under a tort negligence regime. The discontinuity can be described as follows. A potential injurer who adopts the optimal level of precaution is completely shielded from liability under the negligence system even though accidents occur. A very small decrease in the level of precaution below the optimal level suddenly exposes the potential injurer to liability for those accidents. This discontinuity makes the expected cost of under-investment in precaution greater than the expected cost of overinvestment. In a world where there is uncertainty about the optimal level of precaution …

The Concept Of Property In The Early Common Law, David J. Seipp

Faculty Scholarship

“There is nothing,” wrote William Blackstone, “which so generally strikes the imagination and engages the affections of mankind, as the right of property.” Property continues to occupy a place of enormous importance in American legal thought. More than just a staple of the first-year law school curriculum, the concept of property guides the application of constitutional doctrines of due process and eminent domain. A grand division between “property rules” and “liability rules” classifies our common law entitlements. Property is a concept of such longstanding importance in our law, of such great inertial momentum, that it has expanded to include nonphysical …

Proprietary Rights In Digital Data, Maureen A. O'Rourke

Faculty Scholarship

The Clinton Administration in 1993 announced its intention to develop a National ; Information Infrastructure (NII), an "information superhighway" designed to make electronic digital information more widely available and accessible to the public. This announcement has . ~ stimulated a national debate over how best to define and enforce an appropriate set of proprietary rights in digital information. That debate should begin with an analysis and assessment of the current state of the law of digital data. While that law resembles a moving target, general trends may be identified. The current framework provides the background against which NIL may be …

Outcomes Assessment In Health Care Reform: Promise And Limitations, Wendy K. Mariner

Faculty Scholarship

If the fundamental goals of the health care reform effort are to ensure universal access to an acceptable quality of health care at an affordable cost, then the threshold question for reform is: What health care services should be provided in an efficient, equitable system?

Answering this question requires weighing a complex mix of medical and social policy factors, a process not attempted in this article. But the starting point for that process should be determining what health care services “work” and what they cost. Outcomes assessment holds considerable promise in finding answers to these subsidiary questions, because it is …