Law Commons^™

Our Localism: Part I – The Structure Of Local Government Law, Richard Briffault

Faculty Scholarship

Two themes dominate thejurisprudence of American local government law: the descriptive assertion that American localities lack power and the normative call for greater local autonomy. The positive claim of local legal powerlessness dates back to the middle of the nineteenth century and continues to be affirmed by treatises and commentators as a central element of state-local relations. The argument for local selfdetermination has a comparably historic pedigree and broad contemporary support. The scholarly proponents of greater local power – what I will call "localism" – make their case in terms of economic efficiency, education for public life and popular political …

Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt

Faculty Scholarship

Let me start by putting my topic in a concrete context. Suppose a statute is offered to relieve animals of the oppressively cramped conditions of modern factory farming. Advocates claim that calves, lambs, pigs, and chickens should have a better quality of life before being slaughtered for food. Opponents argue that factory farming helps provide tasty, inexpensive meat and that farmers should be free to decide how to treat animals that they own. At stake in the decision whether to restrict farmers is some balancing of animal interests against human interests. In our relatively wealthy society the human interests are …

The World Trading System: Law And Policy Of International Economic Relations, Lori Fisler Damrosch

Faculty Scholarship

This book serves an important need by providing a clear overview of an increasingly complex subject. The author, a leading figure in international trade law, has distilled his accumulated wisdom into an accessible account of the major features of the world trading system. His intended audience includes not only lawyers, but political scientists, economists, government officials and others as well. While he acknowledges that his own "comparative advantage" is in the legal aspects of the field (p. 6), he places the legal concepts in their political and economic context to write a treatment that will be enlightening to readers from …

Aversion To Risk Aversion In The New Institutional Economics, Victor P. Goldberg

Faculty Scholarship

One significant division that emerged during the conference involved the role of risk aversion in analyzing institutional arrangements. I, along with Oliver Williamson, took the position that the risk aversion assumption deflects attention from the more significant determinants and that more progress would be made if we could bind our hands and agree to invoke attitudes toward risk only as a last resort. Professor Richter has graciously given me this opportunity to elaborate upon this theme.

Violence As Regulation And Social Control In The Distribution Of Crack, Jeffrey A. Fagan, Ko-Lin Chin

Faculty Scholarship

This chapter examines violence and aggression among crack and other illicit drug sellers in New York City. Few studies have addressed the origins of drug selling, specifically whether such drug violence reflects generalized violence or violent behaviors contingent on drug selling. Aggression in crack selling appears to be commonplace and severe (Goldstein et al., unpublished manuscript; Goldstein 1989; Johnson, et al. 1990; New York Times 1989b) and is the focus of this study. Aggression evident in nondrug criminality is compared for crack sellers and other seller types. If violence in drug selling is a distinct behavior that reflects the contingencies …

Resolving The Remedial Dilemma: Strategies Of Judicial Intervention In Prisons, Susan P. Sturm

Faculty Scholarship

During the last several decades, courts have undertaken to remedy ongoing constitutional and statutory violations in a variety of public and private institutions. Once a court determines that an institutional pattern or practice violates the law, it must face the challenge of structuring a process that will lead to the elimination of the illegal conditions or practices. Whether this judicial activity is called "ordinary" or "extraordinary," the remedial process in institutional reform litigation may lead the trial court to engage in a range of roles beyond those usually required to "resolve a traditional private dispute.

Courts involved in institutional reform …

Justice Harlan's Conservatism And Altenative Possibilities, Kent Greenawalt

Faculty Scholarship

Bruce Ackerman and Charles Fried's rich essays address the subject of Justice Harlan as a conservative. One who comes to this topic has in mind questions like: Was Justice Harlan a conservative? If so, what kind of a conservative was he? How did his judicial actions exemplify a conservative approach? Most importantly, is his conservatism an appealing model for modern judicial practice?

Professors Ackerman and Fried's slices on this topic reflect their own casts of mind and philosophies of judging. Fried looks at a broad range of Justice Harlan's opinions and sets them against particular conservative qualities that Fried commends. …

Learned Hand And The Self-Government Theory Of The First Amendment: Masses Publishing Co. V. Patten, Vincent A. Blasi

Faculty Scholarship

Sitting as a federal district judge in the case of Masses Publishing Co. v. Patten, Learned Hand was called upon to interpret the Espionage Act of 1917 just six weeks after its passage. The Act was potentially the most speech-restrictive piece of federal legislation since the Alien and Sedition Acts of 1798. Judge Hand recognized this and ruled that the terms of the Act must be construed in light of the first amendment. He defined the limits of legally protected war criticism, and presumably of political advocacy generally, according to a test that makes the crucial consideration the content of …

Insults And Epithets: Are They Protected Speech?, Kent Greenawalt

Faculty Scholarship

It is a privilege to offer a lecture in this series named for Edward J. Bloustein. Not many lecture series honor sitting university presidents who deliver the first lecture in the series; but President Bloustein is the very rare president whose long tenure in office has been accompanied by continuing academic productivity. That achievement is remarkable.

When I tentatively chose this topic a year ago, I knew it involved the application of philosophical insights to serious practical questions, the kind of work that President Bloustein has done so well. I also knew that the search for those aspects of human …

Federal Jurisdiction, Ronald J. Mann

Faculty Scholarship

One important task of the federal judiciary is to resolve cases presenting tensions between national and state governments. The United States Court of Appeals for the Fifth Circuit justly is renowned for its work in this area. One major, if not sensational, arena in which these tensions surface is in cases presenting issues of federal jurisdiction, pursuant to which federal courts allocate power between the national and state judicial systems.

During the survey period the Fifth Circuit published almost one hundred opinions dealing with substantive issues of federal jurisdiction. Like others before me, I have not undertaken in this essay …

Wealth And Property, Thomas W. Merrill

Faculty Scholarship

Professor Stephen Munzer's study of property rights is an ambitious work. Drawing on sources as diverse as Hohfeld, Hegel, Locke, civic republicanism, Marx, the classic utilitarians, and Rawls, he seeks to develop a "pluralist" theory of property, one that synthesizes a variety of philosophical perspectives into a single "basic theory" that can be used to assess and promote the reform of different property systems. Like most attempts to achieve a grand philosophical synthesis, however, this one ultimately fails. The most obvious problem is that Munzer's basic theory is too vague and unwieldy to generate determinate answers to the kinds of …

International Trade Issues For The 1990s, Jagdish N. Bhagwati

Faculty Scholarship

The open, multilateral trading system, centered on the General Agreement on Tariffs and Trade, is currently at risk. The threat continues to come from familiar directions. But there are new problems too.

Sunstein's New Canons: Choosing The Fictions Of Statutory Interpretation Exchange, Eben Moglen, Richard J. Pierce Jr.

Faculty Scholarship

In Interpreting Statutes in the Regulatory State, Cass Sunstein grapples with two of the most difficult and important questions concerning governance of the modern administrative state. First, what institution should have the dominant role in interpreting ambiguous agency-administered statutes? And second, how should the institution perform that task? Sunstein rejects the Supreme Court's answer to the first question, characterizing its assignment of a dominant interpretive role to agencies in Chevron U.S.A., Inc. v Natural Resources Defense Council as "the fox guarding the hen house." Sunstein prefers to charge judges with the responsibility of resolving most interpretive disputes. In answer to …

Harmless Error And The Valid Rule Requirement, Henry Paul Monaghan

Faculty Scholarship

Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless …

Intellectual And Informational Property Rights: Panel Iv - Introduction: Property In Mass Media Law, Lee C. Bollinger

Faculty Scholarship

This is the panel on intellectual and informational property rights. As you can see, there are three panelists other than myself: Ed Kitch, Stephen Carter, and Frank Easterbrook.

I want to begin with just a few thoughts on an area that I know something about: press and media law. I would like to say two things about the notion of property and how it arises in the context of a few problems in the area of mass media law.

A Relational Theory Of Default Rules For Commercial Contracts, Robert E. Scott

Faculty Scholarship

The relationship between legal rules and the strategies that commercial parties use to deal with risk is among the most important and least understood topics in law and economics. Organizational theorists have generally confined their analyses to the nature of the firm and other permanent relationships. Academic commercial lawyers, in turn, have been far less venturesome than their corporate colleagues in applying fundamental economic insights. Not surprisingly, therefore, we know very little about the inner workings of most commercial relationships. For these reasons (and more) I applaud efforts to integrate economic insights and legal structures, exemplified by Clay Gillette's imaginative …

How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch

Faculty Scholarship

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …

A Conceptual, Practical, And Political Guide To Rico Reform, Gerard E. Lynch

Faculty Scholarship

RICO is nearing its twentieth birthday, but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes.

As the pressure for change has intensified, and …

The Strategic Structure Of Offer And Acceptance: Game Theory And The Law Of Contract Formation, Avery W. Katz

Faculty Scholarship

The purpose of this article is to promote a particular research program; namely, the use of game theory to analyze the law of contract formation. Although I will often simply speak of offer and acceptance in my discussion, I mean to refer to a broader set of issues than are commonly denoted by this doctrinal label. My program transcends the narrow issue of whether particular communications technically should be classified as offers and acceptances, and includes questions often analyzed under the rubrics of implication and interpretation. At its broadest, my argument addresses all legal rules that answer two types of …

Just Say No To Whom?, Ronald J. Gilson

Faculty Scholarship

"Just say no" is the current rallying cry of those seeking to give target management the unrestricted power to block hostile tender offers. Not surprisingly, the turn of phrase chosen by management leaves ambiguous the precise issue on which the debate should turn: To whom does management want the power to say no? As target management poses the issue, it wants to say no to a raider. The image is of stalwart management protecting shareholders against a marauding outsider. However, that image is seriously misleading. In fact, target management seeks the power to say no to its own shareholders.

The …

The Rule Of Law And The Two Realms Of Welfare Administration, William H. Simon

Faculty Scholarship

Although it was not the first case in which the Supreme Court upheld a welfare claim, Goldberg v. Kelly is often thought of as the case that extended the rule of law to the welfare system. In doing so, it repudiated the "right/privilege" distinction that would confine procedural protections of economic interests to private law claims.

But Goldberg did not challenge basic assumptions about the nature of procedural fairness that the legal culture had developed principally in connection with private law claims. Its conception of fairness focused on claims initiated by individuals for relief for themselves, and on an adjudicatory …

A Tale Of Two Copyrights: Literary Property In Revolutionary France And America, Jane C. Ginsburg

Faculty Scholarship

The French and U.S. copyright systems are well known as opposites. The product of the French Revolution, French copyright law is said to enshrine the author: exclusive rights flow from one's (preferred) status as a creator. For example, a leading French copyright scholar states that one of the "fundamental ideas" of the revolutionary copyright laws is the principle that "an exclusive right is conferred on authors because their property is the most justified since it flows from their intellectual creation." By contrast, the U.S. Constitution's copyright clause, echoing the English Statute of Anne, makes the public's interest equal, if not …

Intoxication And Aggression, Jeffrey Fagan

Faculty Scholarship

Evidence of an association between use of illicit substances and aggressive behavior is pervasive. But the precise causal mechanisms by which aggression is influenced by intoxicants are still not well understood. Research on intoxication and aggression often has overlooked the nonviolent behavior of most substance users, controlled use of substances, and the evidence from other cultures of a weak or nonexistent relation between substance use and aggression. There is only limited evidence that ingestion of substances is a direct, pharmacological cause of aggression. The temporal order of substance use and aggression does not indicate a causal role for intoxicants. Research …

The Case For Market Damages: Revisiting The Lost Profits Puzzle, Robert E. Scott

Faculty Scholarship

An old and cardinal rule of contract law requires that expectancy damages for breach of contract put the injured party in the position she would have occupied had the contract been performed. Courts and commentators have accepted this full performance compensation principle as the central objective of the expectancy remedy, pursuant to which they have developed many more precise formulas for various types of cases. But the simplicity of the full performance principle disguises substantial problems in its application. One of the least recognized of these problems is the tendency of courts and commentators to determine the contractual expectancy ex …

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

"Carrot And Stick" Sentencing: Structuring Incentives For Organizational Defendants, John C. Coffee Jr.

Faculty Scholarship

The new "Draft Guidelines for Organizational Defendants" released by the U.S. Sentencing Commission on October 25, 1990, explicitly adopt a "'carrot and stick' approach" to sentencing. While the boldly instrumental use made of sentencing penalties and credits in these guidelines will trouble some, the larger question is whether the Commission's social engineering will work. Two issues stand out: First, is the Commission's carrot mightier than its stick? At first glance, this may seem a surprising question because the "stick" in the Commission's guidelines seemingly packs a Ruthian wallop: fines under the draft guidelines are based on a multiple of the …

What's Next?: The Future Of Rico, G. Robert Blakey, John C. Coffee Jr., Paul E. Coffey, L. Gordon Crovitz

Faculty Scholarship

Opening Statement of Mr. Crovitz: Coming to the Notre Dame Law School to debate Robert Blakey on the Racketeer Influenced and Corrupt Organizations law makes me feel like Daniel approaching the lion's den. I'm tempted to offer my own prayer, "Yea, though I walk through the valley of the shadow of death, I will fear no RICO."

Women In The Aids Epidemic: A Portrait Of Unmet Needs, Arlene Zarembka, Katherine M. Franke

Faculty Scholarship

While rarely a month goes by that the topic of AIDS escapes discussion in the legal literature, a survey of legal publications reveals that the implications of AIDS for women has received scant treatment by legal commentators. Unfortunately, this neglect is not unique to the legal community, but reflects a larger societal disinterest in women with AIDS.

In fact, this epidemic looks quite different from the perspective of women. The medical, social, and legal needs of women affected by AIDS are in many ways needs that preexisted AIDS, but which have been magnified by the threat and implications of HIV …

The Devolution Of The Legal Profession: A Demand Side Perspective, Ronald J. Gilson

Faculty Scholarship

Economic analysis has not played a significant role in the increasingly intense debate over the decline of professionalism among lawyers.Economists' lack of interest in the issue may be understandable. The lawyers' lament is that the legal profession is devolving into the business of law. That this concern has not captured the economists' attention may reflect only that economists do not view the label "business" as a pejorative. If becoming a business means efficiently rendering an important service in a competitive environment, then of what is there to complain?

Lawyers, more directly concerned with maintaining their professional status, would find little …

Our Localism: Part Ii – Localism And Legal Theory, Richard Briffault

Faculty Scholarship

A central theme in the literature of local government law is that local governments are powerless, incapable of initiating programs on behalf of their citizens or of resisting intrusions by the state. How can scholars make this claim when under state legislation and federal and state judicial decisions local autonomy plays a critical role in the law of school finance, land-use regulation and local government formation and preservation? As we have seen, a partial response turns on the varying assessments of the nature of power. But much of the answer also has to do with differing assumptions about the underlying …