Law Commons^™

Punitive Damages And The Economic Theory Of Penalties, Keith N. Hylton

Faculty Scholarship

Deterrence has long been considered one of the most important goals of both tort law and criminal law. However, there are different notions of deterrence advanced in the literature in these areas. The traditional notion of deterrence in the criminal punishment literature is one of "complete deterrence," of stopping offenders from committing offensive acts. Generally, complete deterrence is accomplished by eliminating the prospect of gain on the part of the offender. The alternative, more recent notion of deterrence, largely observed in the torts literature, is that of "appropriate or optimal deterrence," which implies deterring offensive conduct only up to the …

Lawyering Up, Jack M. Beermann, Susan Bandes

Faculty Scholarship

The widespread dissemination of knowledge about the Miranda protections is often referred to as one of the most successful efforts ever made to educate the American public about its constitutional rights. Studies confirm that a high percentage of the public is aware of Miranda, largely due to television and other mass media. This article asks the question: if television is educating the public about its Miranda rights, what exactly is it teaching us? As fans of the cop show NYPD Blue (a show in which the interrogation and confession are often the dramatic focus) we use that show to explore …

We The Unconventional American People, James E. Fleming

Faculty Scholarship

In his 1991 volume, We the People: Foundations, Bruce Ackerman urged us as Americans to declare our independence from European models of government and to “look inward” to rediscover our distinctive constitutional scheme--dualist democracy.1 In his new volume, We the People: Transformations, he exhorts us as dualist democrats to break up the monopoly that Article V of the Constitution has held on our vision of constitutional amendment. He urges us to move “beyond Article V” and to embrace a pluralist understanding of the sources of higher lawmaking (pp 15-17). Only by doing so, he argues, will we be able …

The Lawlessness In Our Courts, Susan P. Koniak

Faculty Scholarship

Elsewhere I have argued that the word "law" is too important a resource to reserve exclusively for state acts and pronouncements.⁵ Here, however, my emphasis is somewhat different. Here, I want to concentrate on the importance of denying the label of "law" to some acts that the state calls "law," particularly the importance of lawyers denying the state's indiscriminate use of the word "law." The bar's rhetoric maintains that the profession's independence from the state is critically important because only an independent bar can serve as an appropriate check on tyranny, on state force masquerading as law.⁶ Well, …

The Continuing Relevance Of Section 8 (A) (2) To The Contemporary Workplace, Michael C. Harper

Faculty Scholarship

In this article I evaluate the claims of the critics of the current section 8(a)(2). I do so, as I believe would Professor St. Antoine, ¹⁴ with an eye toward the historical development of new production systems in America and the concomitant development of personnel policies to fit those systems. I consider the purposes for which firm managers seemed to establish and control employee advisory committees before passage of the NLRA and the purposes for which managers seem to establish and control such committees in today's economy. I conclude that these purposes have not substantially changed. Managers before passage of …

Holmes's Good Man: A Comment On Levinson And Balkin, Jack M. Beermann

Faculty Scholarship

Sanford Levinson and J.M. Balkin's paper ("L & B") is refreshing in the attention it pays to Holmes's oft-neglected "good [man], who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience."¹ The good man provides a heuristic foil for Holmes's "bad man" whose conduct is motivated only by the potential material consequences, and thus L & B's analysis should help shed light on what is a puzzling metaphor in the folklore surrounding Holmes's The Path of the Law. L & B provide some interesting observations on the implications of …

Comment On Frederick Schauer's Prediction And Particularity Comment, Gerald F. Leonard

Faculty Scholarship

Ignorance of the law is generally no excuse. I say generally because the century since the publication of The Path of the Law has brought a small but increasing number of exceptions to the rule. In Oliver Wendell Holmes's day, however, exceptions to the rule were nearly nonexistent, much to Holmes's satisfaction.1 In The Common Law, Holmes said that the law requires persons "at their peril to know the teachings of common experience, just as it requires them to know the law." 2 He did not, of course, actually think that common experience was perfectly knowable or judicial interpretation perfectly …

Memorial Tributes For Professor Elizabeth B. Clark In Memoriam, Pnina Lahav

Faculty Scholarship

I leave to others to talk about Betsy's scholarship. Let me only say that she had a remarkable ability to interest others in her projects. When she gave papers or workshops, she spoke softly but with such enthusiasm and engagement that she drew others into her topics and interests effortlessly. Her listeners would lean forward and intently follow her sometimes complex and nuanced train of thought. I have often wondered at this gift-I think it has something to do with her approach to her audience, her ability to be respectful and inclusive rather than distanced and formal. Despite doing painstaking …

Defining The Economic Relationship Appropriate For Collective Bargaining, Michael C. Harper

Faculty Scholarship

These are, of course, difficult times for those who share the goals of the framers of the original National Labor Relations Act (the "NLRA" or "Act") .' As union density in the private sector has continued to decline² and as the NLRA has proven helpless against the economic developments that have generated continuing employer resistance to collective bargaining, the original vision of the Wagner Congress must seem myopic and shaded with an excessively optimistic tint. Observing these economic developments and the enhanced impediments to union organization that they have posed makes it clear that only a much different statute …

Discovery, Learning And Adoption Of New Techniques: Choosing Specialization To Optimize Technical Progress, James Bessen

Faculty Scholarship

Why is it that adopting new technologies takes so long and costs so much? Clearly, firms do not know all the details necessary to implement a complex technology efficiently; learning these details requires extensive search. However, this explanation has a problem: even limited search may be so costly that newly discovered techniques will not be tried. We find that specialization solves this problem. If a complex process is divided into many small components, each searched in parallel, then discoveries are readily tested. Moreover, specialized search can perform surprisingly well even for processes of indefinite complexity. We measure the returns to …

Measuring Market Power When The Firm Has Power In The Input And Output Markets, Keith N. Hylton, Mark Lasser

Faculty Scholarship

We examine the problem of measuring market power when the firm has monopoly power in the output market and monopsony power in the input market - a case we refer to as 'dual-market' power. We show how the Lerner index, which measures the mark-up over the marginal cost, can be modified to reflect the firm's ability to set price above the competitive level.

Deliberative Democracy, Overlapping Consensus, And Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

A pressing concern in political and constitutional theory is how to construct a model of justification in law and politics that offers methods for securing agreement and social cooperation in the face of moral pluralism. A common goal of this work is to elaborate the requirements of deliberative democracy, that is, a model of democratic self-government that "asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it."' Two fundamental questions are: (1) are there any limits to the grounds to which citizens may appeal or the reasons that …

Tribute, Jeffrey L. Salinger

Tributes

I remember sitting in the law auditorium late in our first semester of law school. Listening to a handful of professors, we heard about the electives offered for second semester. I am not sure how I felt prior to entering the auditorium that day. I do remember how I felt afterwards -- I was going to get into Professor Clark’s class. From what I’ve heard, her legal history seminar was by far the most highly coveted of the first-year electives. That’s no surprise, though -- you could almost feel her excitement as she spoke about the course. On hearing that …

Tribute, Bridget J. Crawford

Tributes

I spent my third year of law school in 1995-1996 at Boston University as a visiting student from the University of Pennsylvania Law School. Although personal reasons brought me to Boston that year, one reason brought me to B.U. -- Betsy Clark, a scholar whose work I had long admired and who had agreed to take me on as her student. I knew what a top-notch historian Betsy was, but I could not have known when I arrived at B.U. what a great teacher, generous mentor, and kind friend she would be.

Chapter 7 - Reflections On The Scholarship Of Elizabeth B. Clark, Kristin Olbertson, Carol Weisbrod, Christine Stansell, Martha Minow

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

Elizabeth Clark's essays on early nineteenth-century reform movements make a compelling case that abolitionists and feminists alike understood individual rights from a profoundly religious perspective. Clark also demonstrates how these reformers advocated the protection of so-called "natural rights" for enslaved African-Americans and white women in the vivid and fervently emotional language of evangelical revivalism. Broader cultural and intellectual trends of resistance to governmental and clerical authority, trends rooted in liberal and evangelical Protestantism, Clark argues, helped fuel attacks on slavery and gender inequality. Rejecting other historians' portrayals of the antebellum reformers as primarily secular in orientation, Clark makes the arresting, …

Dedication: For Betsy Clark, 1952-1997, Law & History Review Editor

Tributes

With the consent of those whose work appears here, and on behalf of the American Society for Legal History, this issue of the Law and History Review is dedicated to the memory of our friend and colleague, Elizabeth Battelle Clark, who died on the evening of December 26th, 1997, after a long and fierce fight with cancer. It is deeply saddening to realize that in each of our last three issues we have noted the death of a colleague -- of Willard Hurst, Paul Murphy, and now Betsy Clark. Hers is perhaps the hardest of these deaths to take, because …

Grounded Applications: Feminism And Law At The Millennium, Katharine B. Silbaugh

Faculty Scholarship

The conference topic is feminism in the twenty-first century, a dialogue between academics and practicing attorneys. The first order of business will be to resist the millennium invitation to come up with evermore novel, overarching formulations of the mission and means of feminism. At the end of the twentieth century we know quite a bit about the problems presented by feminists and the problems within feminism. We have had a long history of insightful intellectual discourse on questions of equality and on the meaning of gender. We also know that it takes time to absorb and apply broad insights in …

Marriage Contracts And The Family Economy, Katharine B. Silbaugh

Faculty Scholarship

One simplified view of contract law is that the state enforces private bargains without looking into the substance of those bargains. From this contractual perspective marriage might look like a contract to exchange services and goods: love, money, the ability to have and raise children, housework, sex, emotional support, physical care in times of sickness, entertainment and so forth. But when the parties to a marriage put these terms in writing, courts only enforce the provisions governing money. This contract/family law rule of selective enforcement disproportionately benefits those who bring more money to a marriage, who are more likely to …

Intellectual Property As Price Discrimination: Implications For Contract, Wendy J. Gordon

Faculty Scholarship

As people become enamored with the possible benefits of allowing price discrimination in contracts for intellectual goods, they should realize that traditional intellectual property law works by fostering price discrimination among customers. This simple fact has implications for federal pre-emption, and is a reminder of the complexity of the economic issues involved. Increasing a seller's ability to price discriminate will often involve increasing his monopoly power, with dubious welfare effects.

Evaluating The Case For Social Security Reform: Elderly Poverty, Paternalism And Private Pensions, Maria O'Brien

Faculty Scholarship

This Article considers the many arguments currently being made in favor of Social Security pension reform and evaluates each of them in terms of the principal Congressional goal of the program-the elimination of elderly poverty-as well as more recent goals that have been articulated by subsequent commentators such as a reduction in government paternalism and the maximization of retirement income. The Article begins with a short history of the public pension program in the United States and considers at length the details of the various reform proposals that currently enjoy support. In addition it examines the enormously regressive tax structure …

Productivity Adjustments And Learning-By-Doing As Human Capital, James Bessen

Faculty Scholarship

This paper measures plant-level productivity gains associated with learning curves across the entire manufacturing sector. We measure these gains at plant startups and also after major employment changes. We find: 1) The gains are strongly associated with a variety of human capital measures implying that learning-by-doing is largely a firm-specific human capital investment. 2) This implicit investment is large; many plants invest as much in learning-by-doing as they invest in physical capital and much more than they invest in formal job training. 3) This investment differs persistently over industries and is higher with greater R&D. 4) Consistent with a learning-by-doing …

Protecting Soldiers From Friendly Fire: The Consent Requirement For Using Investigational Drugs And Vaccines In Combat, George J. Annas

Faculty Scholarship

In 1990, following Iraq's invasion of Kuwait, the Department of Defense (DOD) sought a waiver of the informed consent requirements of existing human experimentation regulations from the Food and Drug Administration (FDA). With this waiver, DOD could authorize military use of investigational drugs and vaccines on soldiers involved in the Gulf War without their informed consent. The basis of the waiver request was military expediency. In DOD's words: "In all peace time applications, we believe strongly in informed consent and ethical foundations... but military combat is different." DOD's rationale was that informed consent under combat conditions was "not feasible" because …

Protecting Patients From Discrimination: The Americans With Disabilities Act And Hiv Infection, George J. Annas

Faculty Scholarship

The Americans with Disabilities Act (ADA) was passed in 1990 to expand the reach of the Rehabilitation Act of 1973 and make discrimination on the basis of disability unlawful. The wheelchair symbol has become a universal sign of disability, but there are, of course, many types of disability that have been the basis of discrimination over the years, including blindness, deafness, epilepsy, cancer, heart disease, and mental retardation. AIDS is a disability under the ADA, and most commentators have assumed that infection with the human immunodeficiency virus (HIV) also qualifies as a disability under this act. It was not, however, …

Human Cloning: A Choice Or An Echo, George J. Annas

Faculty Scholarship

The chant is "cloning, cloning, cloning"; but the echo is "choice, choice, choice." From all the hoopla about human cloning as a human choice it would seem that cloning must be the most important scientific issue of our age. My intent in this Commentary is not to join this chorus, but to take advantage of cloning's high visibility to explore the nature of the choice it offers. What is it that makes human cloning at once so appealing to a few and so repulsive to most? The answer, I think, can be found in Roman mythology: Cloning recalls Ovid's myth …

Transgenic Agriculture: Biosafety And International Trade, Michael S. Baram, Calestuous Juma, Sheldon Krimsky, Rufus King

Faculty Scholarship

We stand at the threshold of a new century that will bring novel methods of producing foods, industrial materials, pharmaceuticals, and other products important to society and industry.² Today's session will, therefore, address a subject of great importance: the introduction of genetically modified crops, livestock, micro-organisms, and other substances into agriculture and related fields, made possible by American and foreign corporate biotechnology.

Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke

Faculty Scholarship

In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …

Defining The Limits Of Free-Riding In Cyberspace: Trademark Liability For Metatagging, Maureen A. O'Rourke

Faculty Scholarship

The Internet has the potential to revolutionize global communication, offering a relatively low-cost means for information exchange. Since its inception as a research network, the Internet has developed into a "a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services."' The World Wide Web ("Web"), a tool which helps to organize the enormous amount of information available on the Internet, has been a catalyst in the Internet's emergence as a viable commercial marketplace.

Arbitration In Banking And Finance, William W. Park

Faculty Scholarship

The world's bifurcation into debtors and creditors has created yet another class of people: those involved in resolving disputes between lenders and borrowers. To promote reliability in financial dispute resolution, credit agreements have generally provided that potential controversies will be submitted either to courts in the bank's home jurisdiction, or to courts of a major money center such as London or New York.

Bridging The Gap In Forum Selection: Harmonizing Arbitration And Court Selection, William W. Park

Faculty Scholarship

More than one thoughtful international business manager has been haunted by the fear that foreign judges might not always respect Moses' admonition to impartiality., Concern that the other side will have an unfair advantage in its home court has often driven lawyers to include in international contracts one of two forum selection devices:2 an arbitration agreement entrusting the controversy to a private decision-maker or a courtselection clause granting adjudicatory power to courts at a designated location.3 Both mechanisms can enhance political and procedural neutrality, thereby facilitating business ventures when parties have a mutual mistrust of each other's courts and a …

Cross-Border Securitization: Without Law, But Not Lawless, Tamar Frankel

Faculty Scholarship

The Article discusses two puzzles posed by cross-border securitization.

First, why do the innovators in this area "give away" their creations through publications and other means rather than attempt to extract licensing fees by registering copyrights, patents, and trade names? The Article shows that innovators benefit from "giving away" their innovations through fees of the first clients or future clients to a greater extent than through licensing fees. Second, how can securitization markets develop under fragmented and unpredictable laws? The Article argues that cross-border securitization is flourishing under a "law merchant," which is later incorporated into domestic laws. In fact, …