Law Commons^™

Recognizing Victimhood, Christine Wilke

Studio for Law and Culture

The category of victimhood resonates deeply with many contemporary struggles for recognition without, however, receiving similar attention by political theories of recognition. Many “struggles for recognition” are fought with explicit reference to massive injustice that have ceased without having been publicly recognized as injustices. The state responses to claims for the recognition of victimhood mirror, I will argue, the state’s dominant conceptions of justice and injustice. In many cases, the state affirms its conceptions of injustice and moral innocence through the selective recognition of victims. For example, the U.S. government has granted Japanese-Americans interned during the Second World War an …

Healing The Bishop: Consent And The Legal Erasure Of Colonial History, Jennifer Anne Hamilton

Studio for Law and Culture

During the summer of 1998, Hubert O’Connor, a white Catholic bishop and former Indian residential school principal in British Columbia, participated in what a local magazine termed “a centuries-old native ceremony”: an indigenous healing circle. In 1991, O’Connor was indicted on criminal charges for sexual offences he had allegedly committed some thirty years earlier against five indigenous women, all of whom were his former students and/or employees. While O’Connor acknowledged having sexual relations with these women, he denied having committed any illegal acts, maintaining that these relationships had been consensual. While the trial court originally convicted O’Connor of rape and …

Origins Of The Asymmetric Society: Freedom Of Incorporation In The Early United States And Canada, Jason Kaufman

Studio for Law and Culture

This article explores the origins of a phenomenon of lasting and profound impact on American society: the private business corporation. Business is only part of our concern here, however. Seen in comparative-historical terms, the modern private corporation was born in colonial (i.e. pre-Revolutionary) America. Surprisingly, this occurred not only because of the business needs of colonial Americans but also as a result of their own struggles for political autonomy. More specifically, the post-Revolutionary doctrine of freedom of incorporation first emerged in states that were originally chartered as private corporations. These “corporate colonies’” experienced repeated conflict with the Crown over their …

Equality With A Vengeance – Women Conscientious Objectors In Pursuit Of A "Voice" And Substantive Gender Equality, Noya Rimalt

Studio for Law and Culture

This article examines the story of female draft resistors in Israel. The story serves as a case study that can provide important insights into the inherent constraints of contemporary legal discourse in promoting substantive gender equality and into the relationship between specific legal arrangements and the invisibility of women in the public sphere. This case study also sheds a more complex light on the nature of separate legal arrangements for women, and raises important questions about the appropriate feminist agenda for social and legal change.

“The Inalienable Rights Of The Beasts”: Organized Animal Protection And The Language Of Rights In America, 1865-1900, Susan Pearson

Studio for Law and Culture

Contemporary animal rights activists and legal scholars routinely charge that state animal protection statutes were enacted, not to serve the interests of animals, but rather to serve the interests of human beings in preventing immoral behavior. In this telling, laws preventing cruelty to animals are neither based on, nor do they establish, anything like rights for animals. Their raison d’etre, rather, is social control of human actions, and their function is to efficiently regulate the use of property in animals. The (critical) contemporary interpretation of the intent and function of animal cruelty laws is based on the accretion of …

Paradoxes Of Constitutional Democracy, Kevin Olson

Studio for Law and Culture

Drawing on the work of Frank Michelman and Jürgen Habermas, I outline two interconnected paradoxes of constitutional democracy. The paradox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self-generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that a developing constitution needs some standard to guide it towards legitimacy. Without such a standard, constitutional reform will be aimlessly indeterminate. After rejecting proposed solutions to these paradoxes based …

An Introduction To The Governance And Taxation Of Not-For-Profit Organizations, Patrick Bolton, Hamid Mehran

Center for Contract and Economic Organization

This paper provides a brief overview of the current state of the not-for-profit sector and discusses specific governance issues in not-for-profit organizations. We offer an in-depth analysis of the issues that arise when not-for-profit organizations compete against for-profit firms in the same markets. We argue that while competition by for-profit firms can discipline not-for-profit firms and mitigate their governance problems, the effects of this competition are distorted by the not-for-profits’ corporate income tax exemptions. Based on a simple general equilibrium analysis, we argue that there is little justification for such exemptions.

A Case For Civil Marriage, Carol Sanger

Faculty Scholarship

There has been a frenzy of legislative activity aimed at nailing down the legal definition of marriage to make sure that there will be no more nonsense about same-sex monograms or same-sex marriage applications. In an effort to slow down the frenzy, and to encourage those within the academy to think harder about the on-going problem of what to do about marriage, Professor Edward Stein has posed a straightforward question: Should civil marriage simply be abolished? In this mini-symposium, Professors Edward Zelinsky and Daniel Crane have provided two answers to his question: yes and yes.

Although I am a Contract …

The Promise (And Limits) Of Neuroeconomics, Jedediah S. Purdy

Faculty Scholarship

Neuroeconomics — the study of brain activity in people engaged in tasks of reasoning and choice — looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This Article explains what is most exciting about the new field and lays out some specific research tasks for it.

The Limits Of Courage And Principle, Jedediah S. Purdy

Faculty Scholarship

Michael Ignatieff, the director of the Carr Center for Human Rights at Harvard's Kennedy School of Government, is not a lawyer. His work, however, treats issues of core concern to lawyers: nation-building, human rights, the ethics of warfare, and now, in his latest book, the proper relationship between liberty and security. The Lesser Evil is, in part, a book a legal scholar might have written: a normative framework for lawmaking in the face of the terror threat. It is also something more unusual: an exercise in an older type of jurisprudence. Ignatieff discusses law in the light of moral psychology …

Trade, Law And Product Complexity, Katharina Pistor, Daniel Berkowitz, Johannes Moenius

Faculty Scholarship

How does the quality of national institutions that enforce the rule of law influence international trade? Anderson and Marcouiller argue that bad institutions located in the importer’s country deter international trade because they enable economic predators to steal and extort rents at the importer’s border. We complement this research and show how good institutions located in the exporter’s country enhance international trade, in particular, trade in complex products whose characteristics are difficult to fully specify in a contract. We argue that both exporter and importer institutions affect international as well as domestic transaction costs in complex and simple product markets. …

The Past, Present, And Future Of Violent Crime Federalism, Daniel C. Richman

Faculty Scholarship

The history of the federal involvement in violent crime frequently is told as one of entrepreneurial or opportunistic action by presidential administrations and Congress. The problem with this story, however, is that it treats state and local governments as objects of federal initiatives, not as independent agents. Appreciating that state and local governments courted and benefited from the federal interest is important for understanding the past two decades, but also for understanding the institutional strains created by the absolute priority the feds have given to counterterrorism since September 11, 2001. Intergovernmental relations are at a crossroads. For two decades, the …

Emergency Exemptions From Environmental Laws After Disasters, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes had their origins in disasters. And when disasters strike, the environmental laws come into play in the response. Some have urged Congress to adopt emergency exemptions so that the environmental laws do not interfere with rescue and recovery.

This article explains how disasters helped create our current statutes, and then describes the role that environmental laws played in the immediate response to the September 11 attacks and Hurricane Katrina. It catalogs the multiple exemptions that already exist in the current environmental statutes and regulations and then summarizes the exemptions that were proposed after Hurricane Katrina.

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …

Income Tax Discrimination And The Political And Economic Integration Of Europe, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions have not, however, been matched by significant EU income tax legislation, because no EU political institution has the power to enact such legislation without unanimous consent from the member states. In this Article, we describe how the developing ECJ jurisprudence threatens the ability of member states to use tax incentives to stimulate their domestic economies and to resolve problems of …

Looking For Law In China, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

I have been looking for law in China for over forty years. When I started in 1963, only a handful of other Westerners had also embarked on what then seemed an exotic academic excursion. Since then, after U.S.-China relations were reestablished in 1972, many other Americans have had reason to join in the search. Now, the growing potency of China's economic strength and international reach has made efforts to understand China more important than ever, and law has become a necessary medium for use in such efforts.

This article offers insights into critical institutions and practices that mark the legal …

Objections In Conscience To Medical Procedures: Does Religion Make A Difference Lecture?, Kent Greenawalt

Faculty Scholarship

How should the government res pond if people refuse standard medical treatment? What should the government do if people refuse medical treatment for their children, and what autonomy should teenagers be given in making such choices? Is religion a proper basis for refusing such medical treatment? Furthermore, should medical practitioners have a privilege not to render services that they object to in conscience? This article analyzes such questions and proposes that the most sensible answers depend on context. Legislatures should sometimes create no exemptions, should sometimes create exemptions based on nonreligious criteria, and should sometimes use criteria framed in terms …

Paying For Delay: Pharmaceutical Patent Settlement As A Regulatory Design Problem, C. Scott Hemphill

Center for Contract and Economic Organization

Over the past decade, drug makers have settled patent litigation by making large payments to potential rivals who, in turn, abandon suits that (if successful) would increase competition. Because such "pay-for-delay" settlements postpone the possibility of competitive entry, they have attracted the attention of antitrust enforcement authorities, courts, and commentators. Pay-for-delay settlements not only constitute a problem of immense practical importance in antitrust enforcement, but also pose a general dilemma about the proper balance between innovation and consumer access.

This Article examines the pay-for-delay dilemma as a problem in regulatory design. A full analysis of the relevant industry-specific regulatory statute, …

Interrogating Torture And Finding Race, Ayanna Thompson

Studio for Law and Culture

Antonin Artaud’s second manifesto for the Theatre of Cruelty cries out for a theatre that will depict “great social upheavals” and “conflicts between peoples and races.” Opposed to “disinterested” theatre, Artaud designed the Theatre of Cruelty to depict and affect not only the “tortured victims,” but also the “executioner-tormentor himself.” Artaud viewed both as trapped by “a kind of higher determinism” which he sought to alter through the Theatre of Cruelty (102). To usher in this new theatrical tradition, Artaud declared that the “first spectacle of the Theatre of Cruelty will be entitled: The Conquest of Mexico” (126). Explaining …

Beyond City And Suburb: Thinking Regionally, Richard Briffault

Faculty Scholarship

“City” and “suburb” as they were known and debated in the twentieth century are no more. Increasingly, the key urban unit in metropolitan America is the region. Robert Bruegmann’s Sprawl: A Compact History, a chronicle of the melding of city and suburban land use patterns, illustrates this development. Joel Kotkin’s The City: A Global History, which expresses concern about the loss of traditional urban distinctiveness, also reflects this. In her review of both books, Nicole Stelle Garnett appropriately raises issues of interlocal competition and equity, and the quality of urban life in metropolitan America, but she errs in framing them …

Kernochan Center News - Summer 2006, Kernochan Center For Law, Media And The Arts

Kernochan Center for Law, Media, and the Arts

No abstract provided.

The Housing Court Act (1972) And Computer Technology (2005): How The Ambitious Mission Of The Housing Court To Protect The Housing Stock Of New York City May Finally Be Achieved, Mary Zulack

Faculty Scholarship

1972 to concentrate housing-related cases in a single court and to involve judges in the process of seeing that the housing stock was repaired. When I agreed to contribute an essay on how the Housing Court is fulfilling its obligation to preserve the housing stock, for the October 29, 2004 conference held by The Justice Center of the New York County Lawyers' Association, I imagined I would review annual court-produced statistics. I expected this to include 30 years worth of information about repairs claimed to be needed, orders to repair issued, number of repairs actually made, the range of enforcement …

Disclosure And Fair Resolution Of Adverse Events, Carol B. Liebman, Chris Stern Hyman

Faculty Scholarship

The health care system in the United States is in turmoil. Patients are being harmed by too many, often fatal, mistakes. At the same time, physicians and hospitals are trying to cope with a costly medical malpractice crisis. These two crises create a vicious cycle. When something goes wrong in patient care, physicians and hospitals withhold apologies and offer as little information as possible for fear that anything they say may be used against them should patients or family members sue. Family members, in many cases, sue not only to receive compensation for injuries, but also in search of answers …

Centennial Essays: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The first words of the first essay published in our pages pose a challenge as prescient as it is timely:

The increase of popular control over national conduct, which marks the political development of our time, makes it constantly more important that the great body of the people in each country should have a just conception of their international rights and duties.

With this precept in mind, we begin our celebration of the one-hundredth anniversary of the American Journal of lnternational Law and its publisher, the American Society of International Law.

Six Myths About Kelo: Kelo V. City Of New London, Thomas W. Merrill

Faculty Scholarship

Kelo v. City of New London, 125 S. Ct. 2655 (2005), is unique in the modem annals of law in terms of the negative response it has evoked. The initial reaction by lawyers familiar with the case was one of lack of surprise. Within days, however, Internet bloggers, television commentators, and neighbors talking over backyard fences decided that Keio was an outrage. Even Justice Stevens sought to distance himself from his own majority opinion, declaring in a speech to a bar association that he thought the outcome was "unwise," and that he would not have supported it if he were …

The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah S. Purdy

Faculty Scholarship

Political thinkers have long worried that freedom might be selfundermining, tending to erode the liberal rights and democratic politics that form its foundations. The argument has ancient and modern versions, versions of the political left and of the right. No doubt the only adequate answer is the sum of the answers to many particular questions: whether and when popular elections undermine liberal rights, how free markets enhance or undermine democracy, and so forth. In this article, I address an emerging problem in a central area of contemporary freedom: reproductive autonomy. I ask whether reproductive autonomy can undermine the political conditions …

Our International Constitution, Sarah H. Cleveland

Faculty Scholarship

This Article seeks to challenge and redirect contemporary debate regarding the role of international law in constitutional interpretation based upon an examination of historical Supreme Court practice. The Article has three goals: It first marshals the weight of evidence regarding the Supreme Court's historical use of international law in constitutional analysis, to rebut the claim that the practice is new. It then analyzes the ways that the Court has used international law from a legitimacy perspective, and finally draws lessons from the historical practice to offer preliminary suggestions- regarding the normatively appropriate use of international law.

The "American" And The "International" In The American Journal Of International Law, Lori Fisler Damrosch

Faculty Scholarship

This essay explores the American and international components of the AJIL's identity, with attention to intellectual agendas as well as to individuals who have influenced the Journal in its first century. Part I asks about "American" and "international" preoccupations in the AJIL's substantive work, foreshadowing some of the themes to be developed in more depth in other essays in this centennial series. What have we understood to fall within the purview of an American journal of international law? Have we represented perspectives on our subject in a specifically American or a broadly international way? Part II looks at …

Dilution, Clarisa Long

Faculty Scholarship

Ever since the creation of federal dilution law, legal commentators have expressed consternation about this variation of the trademark entitlement. Prior to the advent of this form of protection, the owner of a mark could recover for trademark infringement under the Lanham Act only if the commercial use of its mark by someone else caused consumer confusion. By contrast, dilution grants trademark holders an injunctive remedy for the use of their famous marks by another even when consumers are not confused. This Article explores how federal dilution law is actually being judicially enforced. To do so, it examines the enforcement …

William Hubbs Rehnquist, Thomas W. Merrill

Faculty Scholarship

We will be debating the legacy of Chief Justice William Hubbs Rehnquist as long as there is a Supreme Court. At the heart of that debate is a puzzle: How could a man so staunchly committed to judicial restraint preside over a Court that became during his tenure on the bench a more powerful actor in American political life than it was when he was appointed?