Law Commons^™

Constructing The Substantive Constitution, James E. Fleming

Faculty Scholarship

I. Introduction A. The Flights from Substance in Constitutional Theory A specter is haunting constitutional theory-the specter of Lochner v. New York.' In the Lochner era, the Supreme Court gave heightened judicial protection to substantive economic liberties through the Due Process Clauses.2 In 1937, during the constitutional revolution wrought by the New Deal, West Coast Hotel v. Parrish3 officially repudiated the Lochner era, marking the first death of substantive due process.4 Nevertheless, the ghost of Lochner has perturbed constitutional theory ever since, manifesting itself in charges that judges are "Lochnering" by imposing their own substantive fundamental values in the guise …

What's Art Got To Do With It?, Wendy J. Gordon

Scholarship Chronologically

I would like to thank the Cardozo LR for their invitation to speak, and all those who have taken the time to discuss this issue w[ith] me in the recent past, including my commentator Marci Hamilton. I also thank the audience for its attendance and attention, and I look forward to the criticisms/reactions from all of you and from Prof Hamilton.

Parading Ourselves: Freedom Of Speech At The Feast Of St. Patrick, Larry Yackle

Faculty Scholarship

Three things are true. First, American society is now absorbed in yet another great civil rights movement, this one on behalf of gay, lesbian, and ambisexual citizens, which will lead ineluctably to the elimination of legal burdens on the basis of sexual orientation.' Change will come slowly, with much backing and filling, and at an awful price measured in human pain. Intolerance for the homosexualities that exist among us, and the homosexual behavior in which many of us engage, will persist in quarters where the law cannot reach.2 Yet private homophobia, deprived of legal sanction, will ultimately be discredited and …

Letter To Ms. Daniel Simon Or Ms. Wendy Beetlestone, Wendy J. Gordon

Scholarship Chronologically

Please disregard the fax I sent you on Saturday. Per my conversation with Wendy, you’ll be receiving a new cleaned-up version of the article on Tuesday for distribution. The draft I sent you Saturday had the file name "B-PARl-6.” Per Wendy's suggestion I'll entitle the file for the draft that you'll get Tuesday, "GORD-FE1.2ND" (meaning 'Gordon - First Editl, second version').

Just The Facts, Ma'am: Lying And The Omission Of Exculpatory Evidence In Police Reports,, Stanley Z. Fisher

Faculty Scholarship

George Jones's ordeal was the product of, and in turn sheds light upon, police practices of investigating crimes and writing reports. Written police reports of criminal incidents and arrests give details such as the time, place, and nature of criminal conduct; the names and addresses of victims and witnesses; physical characteristics of the perpetrator(s) or arrestee(s); weapons used; property taken, recovered, or seized from the arrestee; and injuries to persons and property. Through their reports, the police "have fundamental control over the construction of [the] 'facts' for a case, and all other actors (the prosecutor, the judge, the defense lawyer) …

Age-Based Incentives, Coercion, And The Prospective Waiver Of Adea Rights: The Failure Of The Older Workers' Benefit Protection Act, Michael C. Harper

Faculty Scholarship

The theses of this Article shall be developed in the following manner. Part I shall explain how conditional age-based exit incentive windows can be used by employers to achieve indirectly what the ADEA clearly prohibits when accomplished directly: the removal from employment of a group of employees chosen, at least in part, on the basis of their age. This Part further explains how this removal is accomplished by effectively inducing employees to waive prospectively their future ADEA protection. Part II analyzes the treatment of age-based conditional exit incentives by the courts before the passage of the OWBPA, stressing that the …

The Social Origins Of Property, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …

Letter From Professor Geoffrey P. Miller, Geoffrey P. Miller

Scholarship Chronologically

The article on blackmail's central case is very good. Given the divergence of views about the nature and purposes of blackmail, focusing on the central case where the competing theories converge is a creative and fruitful intellectual move.

Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 05-05-1993, Wendy J. Gordon

Scholarship Chronologically

Blackmail commentary continues to multiply. The purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of the blackmail literature, and to supply the connecting links that will allow us to see how the various theories converge where central-case blackmail is involved. Among other things, I will show how the deontological and consequentialist (economic) approaches converge in condemning central-case blackmail, and I will defend the criminalization of such blackmail.

The Legal Infrastructure Of Markets: The Role Of Contract And Property Law Essay, Tamar Frankel

Faculty Scholarship

Markets are social institutions that facilitate exchange transactions. Therefore, they require a regime of freedom to exchange-a contract regime. Markets can be made more efficient by reducing the transaction and information costs for market actors. Such a reduction can be effected by standardizing the products exchanged, the terms of the transactions, and the nature of the rights transferred. Information costs can be reduced by publicizing the transactions' and by using the services of intermediaries

Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon

Faculty Scholarship

Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

When Courts Refuse To Frame The Law And Others Frame It To Their Will, Susan P. Koniak

Faculty Scholarship

In the aftermath of Kaye, Scholer, Fierman, Hays & Handler's settlement with the government,¹ two versions of the story have emerged. The most popular version features the government actors as villains-villains with new and lethal weapons at their disposal, willing to enforce law that has leapt full grown from their heads like Zeus' child, law of which the rest of the civilized world was unaware. The counterstory, less often told but not without adherents, casts the lawyers of Kaye, Scholer as the villains: unscrupulous and greedy lawyers ready to break any rule, defile any process, twist any truth on …

Letter To Guido Calabresi, Wendy J. Gordon

Scholarship Chronologically

As you may recall, I first became seriously entranced by your work when you gave the "Tragic Choices" lectures at Penn.

Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 1/11/1993, Wendy J. Gordon

Scholarship Chronologically

Blackmail commentary continues to multiply. The purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of the blackmail literature, and to supply the connecting links that will allow us to see how the various theories converge where central-case blackmail is involved. Among other things, I will show how the deontological and consequentialist (economic) approaches converge in condemning central-case blackmail, and I will defend the criminalization of such blackmail.

Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 01-10-1993, Wendy J. Gordon

Scholarship Chronologically

The doctrine of double effect (DDE) and my suggested correlative, the doctrine of single effect (DSE), suggest that no significance should be given to either the lawful nature of the threat or the potentially beneficial side-effects of blackmail. Under DSE, the blackmailer violates deontological constraints if he threatens disclosure in an intent to obtain money or other advantage because, inter alia, were he to have alternative threats available he would threaten anyway. The nature of the threat is outside the intent of the blackmailer in the same way the killing of civilians is outside the intent of the strategic bomber. …

Truth And Consequences - Draft - 01-07-1993, Wendy J. Gordon

Scholarship Chronologically

Rather, he seeks to extract something from the victim that is properly the victim's, usually money, or to make the victim do something (e.g., sleep with him) that is ordinarily a behavior that the victim is at liberty not to engage in. The missing "rights" that Murphy seeks are therefore present and fairly uncontroversial: the rights not to have one's goods intentionally taken, or have one's liberty intentionally infringed, without justification. It is irrelevant whether or not it would be proper for the blackmailer to disclose the information, and thus destroy something the victim may value at a price even …

Truth And Consequences: The Force Of Blackmail's Central Case - Draft - 01-04-1993, Wendy J. Gordon

Scholarship Chronologically

Blackmail commentary continues to multiply. The purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of the blackmail literature, and to supply the connecting links that will allow us to see how the various theories converge where central-case blackmail is involved. Among other things, I will show how the deontological and consequentialist (economic) approaches converge in condemning central-case blackmail, and I will defend the criminalization of such blackmail.

Blackmail: Deontology - 1993, Wendy J. Gordon

Scholarship Chronologically

The basic logic of my deontologic approach is this.

Blackmail: Dde-Type Inquiries - 1993, Wendy J. Gordon

Scholarship Chronologically

DDE-type inquiries usually emerge from a particular brand of intuitionistically-applied deontology which one might call a "theory of side-constraints". From the deontologic notion that "persons are ends, not means," philosophers of this stripe have intuited a number of constraints that should constrain moral actors regardless of the cost. The science of side-constraints is obviously inconsistent with theories such as utilitarianism and economic wealth-maximization, where assessing the costs and benefits of an action constitute the primary guide for action. By contrast side-constraint philosophers tell us that one may not kill another person even to save a large number of other persons; …

Truth And Consequences: The Force Of Blackmail - Outline - 01-02-1993, Wendy J. Gordon

Scholarship Chronologically

This paper: To show what we agree on by explication of the deontologic justification for blackmail prohibitions. In the process· to make the deontologic nature of bmail clearer; to show how the deont & consequentialist approaches agree on the central case; to defend the criminaliz of the central case in liberal (non-libertarian) terms; to provide some tentative observations on the non-central cases

Handwritten Notes On Blackmail - 1993, Wendy J. Gordon

Scholarship Chronologically

No abstract provided.

Blackmail: Property Right - 1993, Wendy J. Gordon

Scholarship Chronologically

It is not a paradox. For it to be a paradox, the following would have to be true: that when one is free to do one thing, or not to do it, one is also free to threaten to do it and sell that for money. But threat and sale are not even "lesser included acts" within doing and not doing; they are quite different from doing or not doing.

Defendants' Brief In The School Finance Case: Mcduffy V. Robertson: An Excerpt And A Summary, Mary Connaughton

Faculty Scholarship

The wisdom of promoting public education in the Commonwealth was recognized by the earliest settlers, the framers of the Constitution, and many subsequent legislatures, officials, educators and citizens. The opinions of the Department, the Secretary of Education, the Governor and various educators, contained in the stipulation, demonstrate that a policy of supporting public education is as important today as ever.²

The implementation of this policy goal by the Legislature and municipalities involves choices that are at the heart of representative government: how much public money to raise, how best to allocate the money among education and the many other …

Throwing Stones At The Mudbank: The Impact Of Scholarship On Administrative Law, Ronald A. Cass, Jack M. Beermann

Faculty Scholarship

The impact of administrative law scholarship on administrative law seems at first blush both a relatively straightforward issue and one that academicians should be especially eager to engage. But there is reason to doubt both propositions. First, any effort to grapple with this topic compels the conclusion that the issue is by no means straightforward. As Peter Strauss recently observed, the question of the influence of administrative law scholarship necessarily becomes as well the influence of active engagement in the practice of administrative law on scholarship.' Moreover, the questions implicated in this assessment cannot be narrowly compassed. The topic requires …

Efficiency And Labor Law, Keith N. Hylton

Faculty Scholarship

In this Article, I examine the economic efficiency of labor law. My claim is that much of labor law seems to be efficient-in a sense that will be made precise below.⁹ I approach this issue by examining the process by which labor law develops and some important areas of labor law doctrine. The central question addressed is whether the process by which labor law develops differs substantially from the common law process. I demonstrate that there are differences that have implications for the efficiency of labor law. But the differences do not seem to be so great as to …

Litigation Cost Allocation Rules And Compliance With The Negligence Standard, Keith N. Hylton

Faculty Scholarship

This article examines compliance, incentives to bring suit, and incentives to settle in a negligence regime under alternative litigation cost allocation rules. Four allocation rules are considered: the American rule, which requires each party to pay his own costs; the British rule, which requires the losing party to pay the winning party's costs in addition to his own; the prodefendant rule, which requires the defendant to pay only his own costs if he loses and nothing otherwise; and the proplaintiff rule, which requires the plaintiff to pay only his own costs if he loses and nothing otherwise.

Asymmetric Information And The Selection Of Disputes For Litigation, Keith N. Hylton

Faculty Scholarship

What explains the decision to litigate rather than settle a dispute? The standard theoretical approach to this question is a contract model that suggests that parties will litigate when the set of mutually beneficial settlement agreements-that is, the contract zone-is empty. The contract zone may be empty because the parties have divergent expectations of the trial outcome or because one party has more at stake than the other. The divergent-expectations explanation suggests that there are general respects in which litigated disputes differ from settled disputes and that one need not know the identities of litigants or the specific area of …

The 'Proper' Scope Of Federal Power: A Jurisdictional Interpretation Of The Sweeping Clause, Gary S. Lawson

Faculty Scholarship

The year is 1790-shortly after ratification of the Federal Constitution. Imagine that the newly formed U.S. Congress, pursuant to its constitutionally enumerated power to "establish Post Offices and post Roads,"2 authorizes construction of a post road between Baltimore and Philadelphia.3 Suppose further that the most convenient route runs straight through, for example, Mrs. Barrington's cow pasture. Mrs. Barrington values her cows' serenity and strongly urges the government to build its road around her pasture. Congress nonetheless enacts a statute instructing the President and his subordinates to build the road across Mrs. Barrington's land. The enabling statute does not authorize compensation …

Detention Of Hiv-Positive Haitians At Guantanamo, George J. Annas

Faculty Scholarship

Speaking for the United States, Secretary of State Warren Christopher told the June 1993 World Conference on Human Rights in Vienna that human rights are universal and that “we cannot let cultural relativism become the last refuge of repression”. The universality of human rights was first recognized internationally in the 1948 United Nations Declaration of Human Rights. But the fact that these rights are recognized and even seen as universal does not ensure that they will be respected, even by their strongest supporters. The lack of an international tribunal with jurisdiction to hear complaints about human-rights violations and provide remedies …