Digital Commons Network^™

The Council Of Europe Addresses Cia Rendition And Detention Program, Monica Hakimi

Faculty Scholarship

In November 2005, the U.S. media reported that the Central Intelligence Agency was operating secret detention facilities in a handful of foreign countries, including two in eastern Europe, and that detainees were often transferred between those facilities and states known to engage in torture. The news that terrorism suspects may have been denied their human rights in member states of the Council of Europe caused concern within the Council and triggered several responses. Within days of the media reports, the Council's Parliamentary Assembly appointed a rapporteur to investigate the extent to which member states were participating in the CIA program. …

The Future Of International Law: Members' Reception And Plenary Panel, Georgetown University Law Center – Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

It is a privilege to follow Judge Owada and to take up the challenge offered by the theme statement of this panel: to assess trends that we perceive to be shifting the future of international law, while also interrogating claims of their newness. Perhaps everything that we think of as new has some resonance with the past.

The Imagination Of James Boyd White, Lee C. Bollinger

Faculty Scholarship

For several decades, James Boyd White has been a unique voice in the law. It is a voice of extraordinary intellectual range, of erudition, and of deep commitment to a life of self-understanding and of humane values. His point of access is language – all language, in every context. Armed by a lifetime of thought about words, he justifiably has regarded no field or discipline or communicative activity as foreign and outside his ken. Whoever reads him must feel his sense of intellectual empowerment that our world, sectioned as it is by expertise, would deny us.

A World Without Marriage, Elizabeth S. Scott

Faculty Scholarship

The legal status of marriage has become the focus of a great deal of controversy in recent years. Social and religious conservatives have voiced alarm at the decline of marriage in an era in which divorce rates are high and increasing numbers of people live in nonmarital families. For these advocates, social welfare rests on the survival (or revival) of traditional marriage. Meanwhile, critics from the left argue that marriage as the preferred and privileged family form will (and should) soon be a thing of the past. Some feminists, such as Martha Fineman and Nancy Polikoff, want to abolish legal …

Social Contagion Of Violence, Jeffrey A. Fagan, Deanna L. Wilkinson, Garth Davies

Faculty Scholarship

In this chapter, we assess whether the roller-coaster pattern of homicides in New York City beginning in 1985 fits a contagion model and identify mechanisms of social contagion that predict its spread across social and physical space. This framework for interpreting the homicide trends as an epidemic includes two perspectives. First, the sharp rise and fall are indicative of a nonlinear pattern in which the phenomenon spreads at a rate far beyond what would be predicted by exposure to some external factor and declines in a similar pattern in which the reduction from year to year exceeds what might be …

A Critique Of The Efficient Performance Hypothesis, Jody S. Kraus

Faculty Scholarship

The classic economic justification of contract law’s default remedy of expectation damages is grounded on the efficient breach hypothesis: that promisors should be permitted and encouraged to breach when the net gains from breach exceed the net gains from performance. Expectation damages ensure that all and only efficient breaches will occur because promisors will find breach profitable only if its benefits exceed the value of performance to the promisee. The efficient breach hypothesis, and the defense of expectation damages that rests on it, has long been criticized for being inconsistent with the moral intuition that promisors necessarily forfeit their right …

Two Puerto Rican Senators Stay Home, Christina D. Ponsa-Kraus

Faculty Scholarship

José R. Coleman Tió proposes that Congress grant Puerto Rico equal representation in the House of Representatives through simple legislation. Although Puerto Rico has been subject to U.S. sovereignty since 1898 and Puerto Ricans have been U.S. citizens since 1917, they cannot vote in federal elections — not for Congressmen, not for Senators, not for the President of the United States. This is because Puerto Rico is not a state: the Constitution provides that “[t]he House of Representatives shall be composed of Members chosen ... by the People of the several States.” But Coleman does not see this constitutional provision …

Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe

Faculty Scholarship

The legal status of international human rights litigation under the Alien Tort Statute (ATS) has been the subject of much debate, culminating in the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The debate has been almost exclusively doctrinal and has focused on the Judiciary Act of 1789, the historical treatment of the law of nations as general or federal common law, the evolution of the Supreme Court's international law jurisprudence, and the integration of customary international law (CIL) into the domestic legal system.

This Article argues that the focus on doctrine masks underlying international relations …

To Condone Or Condemn? Regional Enforcement Actions In The Absence Of Security Council Authorization, Monica Hakimi

Faculty Scholarship

The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

Tax Expenditures As Foreign Aid, David E. Pozen

Faculty Scholarship

Few issues in global politics are as contentious as foreign aid – how much rich countries should give, in what ways, to whom. For years, it has been a commonplace that U.S. policies are stingy. The Organization for Economic Cooperation and Development (OECD) routinely ranks the United States far behind its industrialized peers in official development assistance (ODA), measured as a percentage of gross national income (GNI). An endless parade of critics has implored the government to do more; some suggest that the Bush Administration's support for the Monterrey Consensus, which sets a goal of increasing assistance to 0.7% of …

Transactional Economics: Victor Goldberg's Framing Contract Law, Mark P. Gergen, Victor P. Goldberg, Stewart Macaulay, Keith A. Rowley

Faculty Scholarship

Professor Mark Gergen: Thank you. It is an honor to speak to this group and to be on a panel with Stewart Macaulay, Keith Rowley, and Victor Goldberg. I have an enormous amount of respect for the three. Keith had the misfortune of being a student of mine in Federal Income Tax.

Framing Contract Law offers a wealth of information about familiar cases. Victor argues that in construing contracts, courts should be attentive to how people engineer contracts to minimize transaction costs. He shows that courts often err in this regard, imposing unnecessary costs. To make his case, Victor delves …

Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus

Faculty Scholarship

Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of …

Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard Harcourt

Faculty Scholarship

How do you reconcile an opinion like Edmond v Goldsmith with the anti-civil-libertarian positions that Richard Posner advocates in his book Not a Suicide Pact: The Constitution in a Time of National Emergency? The book itself is self-consciously directed against a civil libertarian framework. "The sharpest challenge to the approach that I am sketching," Posner knowingly anticipates, "will come from civil libertarians," by which he means those "adherents to the especially capacious view of civil liberties that is often advanced in litigation and lobbying by the American Civil Liberties Union." In his book, Richard Posner argues in defense of the …

Are Issuers Of And Dealers In Securities Immune From Lawsuits Arising Under Federal And State Antitrust Laws?, Hannibal Travis

Faculty Publications

Conduct potentially subject to regulatory scrutiny by federal agencies such as the Securities Exchange Commission (SEC) is not necessarily immune from antitrust liability. The Supreme Court previously held that an anticompetitive conspiracy in the mutual fund industry was immune from antitrust liability because the SEC had the primary statutory authority to prohibit or permit such conspiracies. This case raises the question of whether another alleged conspiracy—to restrict the availability of certain initial public offerings of securities (IPOs)—is similarly immune.

The Cost Of Norms: Tax Effects Of Tacit Understandings, Alex Raskolnikov

Faculty Scholarship

Most human interactions take place in reliance on tacit understandings, customary practices, and other legally unenforceable agreements. A considerable literature studying these informal arrangements (commonly referred to as social norms) has a decidedly positive flavor, arguing that many, if not most, of these norms are welfare enhancing. This Article looks at the less-appreciated darker side of social norms. It combines an analysis of modern sophisticated tax planning techniques with existing empirical studies of commercial relationships to reveal a disturbing connection. By relying on tacit understandings rather than express contractual terms, many taxpayers shift some of their tax liabilities to those …

Congress, Article Iv, And Interstate Relations, Gillian E. Metzger

Faculty Scholarship

Article IV imposes prohibitions on interstate discrimination that are central to our status as a single nation, yet the Constitution also grants Congress broad power over interstate relations. This raises questions with respect to the scope of Congress's power over interstate relations, what is sometimes referred to as the horizontal dimension of federalism. In particular, does Congress have the power to authorize states to engage in conduct that otherwise would violate Article IV? These questions are of growing practical relevance, given recently enacted or proposed measures – the Defense of Marriage Act (DOMA) being the most prominent example – in …

Panel One: Lessons Learned: Gender Analyses Of Past Policies And Practices: Introduction, Suzanne B. Goldberg

Faculty Scholarship

Hello. I'm Suzanne Goldberg. I am pleased to welcome you to the first of two afternoon panels as part of the Women's Rights Law Reporter Symposium, "Lessons Learned: Gender Analyses of Past Policies and Practices." Thank you to Dr. Enarson for the wonderful opening to our conversation today. She has inspired us to think about broadening our analytic lens by foregrounding questions of gender in our consideration of disasters and disaster relief.

The Law School Matrix: Reforming Legal Education In A Culture Of Competition And Conformity, Susan Sturm, Lani Guinier

Faculty Scholarship

Law school reform is in the air. Many reformers agree that the prevailing law school model developed in the nineteenth century does not adequately prepare students to become effective twenty-first century lawyers. Langdell's case method, designed around private domestic law, appellate cases, and the Socratic method, increasingly fails to teach students "how to think like a lawyer" in the world students will occupy. The curriculum over-emphasizes adjudication and discounts many of the important global, transactional, and facilitative dimensions of legal practice. Law school has too little to do with what lawyers actually do and develops too little of the institutional, …

Introduction To The Symposium Issue On Alternative Dispute Resolution Strategies In End-Of-Life Decisions, Carol B. Liebman

Faculty Scholarship

At about 8:30 p.m. on a spring evening approximately twenty-five years ago when I was living in Newton, Massachusetts, our telephone rang. It was the emergency judge on duty that week asking me to go to a nearby suburban hospital to represent a sixty-eight-year-old woman whom I'll call Mrs. P. She had been hospitalized for heart failure and was refusing treatment, saying that she wanted to die with dignity.

Mrs. P and her husband had traveled to Boston from her home, a small town in New York about five hours away, to meet their newest grandchild. When I arrived at …

Advancing The Rule Of Law: Report On The International Rule Of Law Symposium Convened By The American Bar Association November 9-10, 2005, Katharina Pistor

Faculty Scholarship

The American Bar Association hosted the first International Rule of Law Symposium in Washington, D.C. on November 9-10, 2005. The Symposium brought together representatives from all over the world who share a common interest in advancing the rule of law as a means to tackle major obstacles that hamper social and economic growth and development around the globe. Some were ministers and government officials, others entrepreneurs and business people, yet others represented non-governmental organizations or employees of multilateral donor organizations. The topics addressed at the Symposium were equally far reaching in scope, covering everything from poverty alleviation and improving public …

The Architecture Of Inclusion: Interdisciplinary Insights On Pursuing Institutional Citizenship, Susan Sturm

Faculty Scholarship

Structural inequality has captured the attention of academics, policymakers, and activists. This structural reorientation is occurring at a time of judicial retrenchment and political backlash against affirmative action. These developments have placed in sharp relief the mismatch between structural diagnoses and the dominant legal frameworks for addressing inequality. Scholars, policymakers, and activists are faced with the pressing question of what to do now. They share a need for new frameworks and strategies, growing out of a better understanding of institutional and cultural change.

I am honored that the Harvard Journal of Law & Gender has used the publication of The …

Software Patents, Incumbents, And Entry, John R. Allison, Abe Dunn, Ronald J. Mann

Faculty Scholarship

Software patents have been controversial since the days when "software" referred to the crude programs that came free with an IBM mainframe. Different perspectives have been presented in judicial, legislative, and administrative fora over the years, and the press has paid as much attention to this issue as it has to any other intellectual property topic during this time. Meanwhile, a software industry developed and has grown to a remarkable size, whether measured by revenues or profitability, number of firms or employees, or research expenditures. The scope of software innovation has become even broader, as an increasing number of devices …

Precontractual Liability And Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

For decades, there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly due to scholars' failure to recover the law in action governing precontractual liability issues. In this Article, Professors Schwartz and Scott show first that no liability attaches for representations made during preliminary negotiations. Courts have divided, however, over the question of liability when parties make reliance investments following a "preliminary agreement." A number of modern courts impose a duty to bargain in good faith on the party wishing to exit such an agreement. Substantial uncertainty remains, however, regarding when this duty …

Electron Transfer Prompted Ejection Of A Tightly Bound K+ From The Ethereal Cavity Of A Hexaarylbenzene-Based Receptor, Ruchi Shukla, Sergey V. Lindeman, Rajendra Rathore

Chemistry Faculty Research and Publications

Synthesis of a pair of rotamers (9u/9s) of a hexaarylbenzene derivative containing six (cofacially arranged) electroactive 2,5-dimethoxytolyl groups is described. The toroidal electronic stabilization due to the circular arrangement of aryl groups in 9u/9s leads to the observation of multiple (reversible) oxidation waves and lowering of their E_ox1 by ∼250 mV relative to model compounds. The binding of K⁺ to symmetrical rotamer 9s was monitored by an electrochemical method and further confirmed by X-ray crystallography.

A ‘Metallic Tape’ Stabilized By An Unprecedented Μ5-Κ2,Κ2,Κ2,Κ1,Κ1-) Scorpionate Binding Mode, James R. Gardinier, Rosalice M. Silva, Chengeto Gwengo, Sergey V. Lindeman

Chemistry Faculty Research and Publications

The Janus scorpionate ligand, tris(mercaptothiadiazolyl)borate, exhibits extraordinary coordination capacity and versatility, binding from two up to five metal cations as demonstrated by its thallium(I) salt, a compound that serves as a model for metal–surface binding.

In Memoriam: Clark Byse, Stephen G. Breyer, Elena Kagan, Andrew L. Kaufman, Todd D. Rakoff, Peter L. Strauss, Richard K. Willard

Faculty Scholarship

The editors of the Harvard Law Review respectfully dedicate this issue to Professor Clark Byse.

An Analogue Study Of Patient Preferences For Exposure Versus Alternative Treatments For Post Traumatic Stress Disorder, Carolyn Becker, Ellen Darius, Katherine Schaumberg

Psychology Faculty Research

Although several efficacious treatments for Posttraumatic Stress Disorder (PTSD) exist, these treatments are currently underutilized in clinical practice. To address this issue, research must better identify barriers to dissemination of these treatments. This study investigated patient preferences for PTSD treatment given a wide range of treatment options in an analogue sample. One hundred and sixty individuals, with varying degrees of trauma history, were asked to imagine themselves undergoing a trauma, developing PTSD, and seeking treatment. Participants evaluated seven different treatment descriptions which depicted treatment options that they might encounter in a clinical setting. Participants rated their most and least preferred …

Framing Family Court Through The Lens Of Accountability, Jane M. Spinak

Faculty Scholarship

Abolish Family Court. Merge it. Restructure it. Give it more power; give it less. Whatever recommendations were made during the two-day conference, not a single participant said that the current Court functioned well. That's hardly surprising. Barely twenty-five years after the first juvenile court was created, some of its chief protagonists expressed alarm about the Court's functioning. Those concerns are eerily similar to some of the current critiques that surfaced at the conference: insufficient resources, inadequate preventive services to keep children out of court, an overwhelmed probation service, judges without ample understanding of the complexities of families' lives, intervening in …

Article Iii And Supranational Judicial Review, Henry Paul Monaghan

Faculty Scholarship

With the rise of supranational legislative bodies, the use of supranational adjudicatory bodies has also increased. These adjudicatory bodies have even been allowed to review the domestic law decisions offederal administrative agencies, and their decisions are insulated from any review by Article III courts. These developments have been met by intense opposition. This Article addresses the question whether, as claimed by several writers, the emerging supranational adjudicatory order impermissibly contravenes the "essential attributes of the judicial power established by Article III." Examining two case studies, the North American Free Trade Agreement (NAFTA) and the Supreme Court's recent decisions regarding Article …