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Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg Jan 2021

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin ...


Constitutional War Powers In World War I: Charles Evans Hughes And The Power To Wage War Successfully, Matthew C. Waxman Jan 2020

Constitutional War Powers In World War I: Charles Evans Hughes And The Power To Wage War Successfully, Matthew C. Waxman

Faculty Scholarship

On September 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” This moment and those words were a collision between the onset of “total war,” Lochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes’s statement – including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.


War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman Jan 2020

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer ...


Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su Jan 2020

Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su

Faculty Scholarship

The National League of Cities’ “Principles of Home Rule for the Twenty-First Century” updates the American Municipal Association’s 1953 “Model Constitutional Provisions for Municipal Home Rule.” The AMA approach was widely adopted, but those provisions are now over 65 years old and intervening social, demographic, economic, and political changes necessitates a new approach to the legal structure of state-local relations. The NLC’s approach is organized around four basic principles, which are cashed-out in a model constitutional home rule provision, with commentary. The first principle states that a state’s law of home rule should provide local governments the ...


Judges And Judgment: In Praise Of Instigators, Kathryn Judge Jan 2019

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

Faculty Scholarship

This essay celebrates judicial instigators, and Judge Richard Posner as instigator. It embraces a view of the judicial system as a system, one that can best achieve its myriad aims only if there is some variety in its constituent parts. Having some judges, some of the time, willing to ask hard questions about what the law is and should be is critical to ensuring the law achieves its intended aims. This essay illustrates this point by weaving together a single case about mutual fund fees with personal observations accumulated over a year as a clerk to Judge Posner and Posner ...


Foucault’S Keystone: Confessions Of The Flesh – How The Fourth And Final Volume Of The History Of Sexuality Completes Foucault’S Critique Of Modern Western Societies, Bernard E. Harcourt Jan 2019

Foucault’S Keystone: Confessions Of The Flesh – How The Fourth And Final Volume Of The History Of Sexuality Completes Foucault’S Critique Of Modern Western Societies, Bernard E. Harcourt

Faculty Scholarship

In the final pages of the now-final volume of The History of Sexuality, Volume 4: Les aveux de la chair (“Confessions of the Flesh”), Foucault’s intellectual project comes full circle and achieves its long-awaited completion. In those final pages, dedicated to Augustine’s treatment of marital sexual relations, Foucault reveals the heretofore missing link that now binds his ancient history of sexual relations to his critique of contemporary forms of neoliberal goverance: Foucault discovers in Augustine’s writings the moment of the birth of the modern legal subject and of the juridification of social relations. Like the final piece ...


A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen Jan 2019

A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support ...


Law Enforcement Organization Relationships, Daniel C. Richman Jan 2019

Law Enforcement Organization Relationships, Daniel C. Richman

Faculty Scholarship

Although police departments and prosecutor’s offices must closely collaborate, their organizational roles and networks, and the distinctive perspectives of their personnel, will inevitably and regularly lead to forceful dialogue and disruptive friction. Such friction can occasionally undermine thoughtful deliberation about public safety, the rule of law, and community values. Viewed more broadly, however, these interactions promote just such deliberation, which will become even healthier when the dialogue breaks out of the closed world of criminal justice bureaucracies and includes the public to which these bureaucracies are ultimately responsible


The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault Jan 2019

The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault

Faculty Scholarship

Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort ...


A Better Financing System? The Death – And Possible Rebirth – Of The Presidential Nomination Public Financing Program, Richard Briffault Jan 2019

A Better Financing System? The Death – And Possible Rebirth – Of The Presidential Nomination Public Financing Program, Richard Briffault

Faculty Scholarship

In 1974 Congress authorized public funding for presidential nomination campaigns. Public funding was crucial to Jimmy Carter’s nomination in 1976 and to Ronald Reagan’s nearly successful campaign the same year, and continued to be an important factor in presidential nomination contests for more than two decades after that. But no major candidate has used the program since 2004. Due the program’s built-in limitations, changes in the nomination process, and campaign finance developments, the program is completely irrelevant today.

It has been argued that the program isn’t really needed. Although one argument for public funding is that ...


The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt Jan 2019

The Last Refuge Of Scoundrels: The Problem Of Truth In A Time Of Lying, Bernard E. Harcourt

Faculty Scholarship

This essay addresses the problem of truth today in light of the common belief, especially among progressives, that we have entered a post-truth age, as well as of the frequent claim that our post-truth society is the fault of postmodernists and their challenge to the objectivity of truth. The essay does not resolve the strategic question whether the post-truth argument is, as a purely tactical political matter, an effective approach to respond to the onslaught of misrepresentations and lies by President Donald Trump and the New Right. Instead, it explores the post-truth argument from a more synoptic perspective regarding the ...


Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson Jan 2019

Unjust Cities? Gentrification, Integration, And The Fair Housing Act, Olatunde C.A. Johnson

Faculty Scholarship

What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification’s harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to ...


Normative Powers (Revised), Joseph Raz Jan 2019

Normative Powers (Revised), Joseph Raz

Faculty Scholarship

The paper provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyse several kinds of such powers. The revision affects mainly the analysis of such types. The main theses of the paper concern the distinction between basic from chained powers and the account of the relations between the normative powers and the values which explain and justify their existence. It ends by showing the connection between the thesis that values depend on human nature and culture and the dependence of normative powers on justifying reasons.


Seeing Transparency More Clearly, David E. Pozen Jan 2019

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The ...


Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm Jan 2019

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of ...


Constitutional Law And The Presidential Nomination Process, Richard Briffault Jan 2019

Constitutional Law And The Presidential Nomination Process, Richard Briffault

Faculty Scholarship

The Constitution says nothing about the presidential nominating process and has had little direct role in its evolution from congressional caucuses to party national conventions to our current primary-dominated system. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes.

The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the electoral process – which may include the primary ...


Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan Jan 2019

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for ...


Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen Jan 2019

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort ...


Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller Jan 2018

Why Autonomy Must Be Contract's Ultimate Value, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In “The Choice Theory of Contracts”, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract.

Oren Bar-Gill pushes back strongly in “Choice Theory and the Economic Analysis of Contracts”. He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add?

Our task in Part I of this Essay is ...


Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller Jan 2018

Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path ...


Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt Jan 2018

Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt

Faculty Scholarship

We are going through an unprecedented period of political instability. With the rise of the alt-right and of xenophobic sentiment, and the fallout of neoliberal government policies, our political future is at stake. These times call for the type of critical theory and praxis that gave rise to the Frankfurt School in the 1920s and to the critical ferment of the 1970s. Yet, in the face of our crises today, contemporary critical theory seems disarmed.

Critical theory is in disarray because of a wave of anti-foundational challenges in the 1960s that shattered the epistemological foundations of the Frankfurt School. The ...


Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan Jan 2018

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in traffic enforcement responses to local government budget stress using data from policing agencies in the state of Missouri from 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates; we also find an increase in traffic-stop arrest rates. However, we find that these effects are concentrated among White (rather than Black or Latino) drivers. The results are robust to the inclusion of a range of covariates and a variety of model specifications, including a regression discontinuity examining bare budget shortfalls. Considering potential mechanisms, we ...


Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter Jan 2017

Measuring Law School Clinics, Colleen F. Shanahan, Jeffrey Selbin, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet.

Though we have these laudable teaching and service goals – and a vast literature describing the role of clinics in both the teaching and service dimensions – we have scant empirical ...


Democratic Experimentalism, Charles F. Sabel, William H. Simon Jan 2017

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

This essay, written for a volume surveying “contemporary legal thought”, provides an overview of Democratic Experimentalism, a perspective that draws on both pragmatist social theory and recent practical innovations in private and public organization. Normatively, Democratic Experimentalism aligns with process theories that emphasize the role of courts in vindicating entitlements through inducing, collaborating with, and policing institutions, rather than vindicating them directly through interpretive or policy-engineering techniques. It departs from some such theories, however, in emphasizing that practice must often take the form of continuous investigation and revision, rather than the adoption of definitive solutions already known to at least ...


Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon Jan 2017

Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

This article compares two spheres in which courts induce and oversee the restructuring of organizations that fail systematically to comply with their legal obligations: bankruptcy reorganization and public law litigation (civil rights or regulatory suits seeking structural remedies). The analogies between bankruptcy and public law litigation (PLL) have grown stronger in recent years as structural decrees have evolved away from highly specific directives to “framework” decrees designed to induce engagement with stakeholders and make performance transparent. We use the comparison with bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted, to address prominent criticisms ...


Some Legal Realism About Legal Theory, Jeremy Kessler, David Pozen Jan 2017

Some Legal Realism About Legal Theory, Jeremy Kessler, David Pozen

Faculty Scholarship

This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, 83 U. Chi. L. Rev. Online 225 (2017), which responds to Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016).

Our article Working Themselves Impure concludes by calling for lawyers to take more seriously the failure of prescriptive legal theories to produce the results they once promised. When prescriptive legal theories that fail to achieve their initial, publicly stated goals nonetheless gain and sustain broad support, "external" explanations of ...


Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon Jan 2017

Courts As Institutional Reformers: Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

This article compares two spheres in which courts induce and oversee the restructuring of organizations that fail systematically to comply with their legal obligations: bankruptcy reorganization and public law litigation (civil rights or regulatory suits seeking structural remedies). The analogies between bankruptcy and public law litigation (PLL) have grown stronger in recent years as structural decrees have evolved away from highly specific directives to “framework” decrees designed to induce engagement with stakeholders and make performance transparent. We use the comparison with bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted, to address prominent criticisms ...


The Choice Theory Of Contracts (Introduction), Hanoch Dagan, Michael Heller Jan 2017

The Choice Theory Of Contracts (Introduction), Hanoch Dagan, Michael Heller

Faculty Scholarship

This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. "The Choice Theory of Contracts" answers the field's most pressing questions: What is the “freedom” in “freedom of contract”? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contract law? Hanoch Dagan and Michael Heller show exactly why and how freedom matters to contract. They start with the most appealing tenets of modern liberalism and end with their implications for contract law. This readable, engaging book gives contract scholars, teachers, and students ...


Can Moral Principles Change?, Joseph Raz Jan 2017

Can Moral Principles Change?, Joseph Raz

Faculty Scholarship

The paper considers the main arguments against the possibility that basic normative principles can change, and finds them wanting. The principal argument discussed derives from the claim that normative considerations are intelligible, and therefore that they can be explained, and their explanations presuppose the prior existence of basic normative principles. The intelligibility thesis is affirmed but the implication that basic change is impossible is denied. Subsumptive explanations are contrasted with explanations by analogy. Later in the paper, other objections are considered more briefly: that normative properties are queer, that they are unconnected to the rest of reality, and therefore cannot ...


Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy Kessler, David Pozen Jan 2016

Working Themselves Impure: A Life Cycle Theory Of Legal Theories, Jeremy Kessler, David Pozen

Faculty Scholarship

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that ...