Law Commons^™

Surveying The Borders Of Copyright, Jane C. Ginsburg

Faculty Scholarship

The copyright course I teach at Columbia Law School begins with a survey of what copyright is not: it is not a patent, a trademark, or an object of physical property. Nor, as the course examines a little later on, does copyright protect every object of economic value whose worth might be further enhanced were it to be shielded from unauthorized copying. However, the frontiers between copyright and mere commercial value have never been well defined. Not only may the same item be simultaneously the object of copyright and of other legal rights, but copyright increasingly covers – or is …

Fear And Loathing In The Siting Of Hazardous And Radioactive Waste Facilities: A Comprehensive Approach To A Misperceived Crisis, Michael B. Gerrard

Faculty Scholarship

Few laws have failed so completely as the federal and state statutes designed to create new facilities for the disposal of hazardous and radioactive waste. Despite scores of siting attempts and the expenditure of several billion dollars since the mid-1970s, only one radioactive waste disposal facility, only one hazardous waste landfill (in the aptly named Last Chance, Colorado), and merely a handful of hazardous waste treatment and incineration units are operating on new sites in the United States today.

In 1981, a leading member of Congress, relying on data from the U.S. Environmental Protection Agency (EPA), predicted that by 1985 …

"What About The 'Ism'?" Normative And Formal Concerns In Contemporary Federalism, Richard Briffault

Faculty Scholarship

Contemporary legal discourse concerning federalism has shifted from the formal to the normative, that is, from a focus on the fifty states as unique entities in the American constitutional firmament to a concern with the values of federalism. This normative turn has had some salutary effects. It has sharpened the debate over federalism, reminded us of the impact of the federal design on the substance of American governance, and underscored the interrelationship of government structure and individual rights. But the normative approach has also, paradoxically, moved the focus of federalism away from the states. Many of the arguments offered on …

On The Moral Irrelevance Of Bodily Movements, George P. Fletcher

Faculty Scholarship

In the mess of confusions called Anglo-American criminal law, writers commonly refer to the "problem of punishing omissions." There is something untoward, they say, about imposing criminal liability on the bystander who could intervene to save a drowning child and fails to do so. Punishing acts in violation of the law is all right, but there is some special difficulty, never completely understood and clarified, about imposing liability for omissions.

The confusion about omissions has suffered unnecessary compounding by the organization of one of the leading casebooks on criminal law. Apparently not quite sure where to locate their cases on …

Unburdening The Undue Burden Standard: Orienting Casey In Constitutional Jurisprudence, Gillian E. Metzger

Faculty Scholarship

"Liberty finds no refuge in a jurisprudence of doubt." With these words in the 1992 case, Planned Parenthood v. Casey, the Supreme Court ushered in a new era of abortion regulation. Speaking through a joint opinion authored by Justices O'Connor, Kennedy, and Souter, the Court indicated that from this point forth abortion regulations would be judged by an "undue burden" standard. According to this standard, an abortion regulation is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion" of a nonviable fetus.

The Justices who wrote …

The World Trading System, Jagdish N. Bhagwati

Faculty Scholarship

The Uruguay Round is closing this week after a marathon of negotiations stretching well over seven years; so the timing of this panel is exquisite, from my viewpoint. The ceremony, besides, is in Marrakech, an exotic place that sets our minds racing with thoughts of "Casablanca," Humphrey Bogart and Ingrid Bergman. Indeed, one can imagine a movie being made of this historic occasion that will transform the General Agreement on Tariffs and Trade (GAIT) into the World Trade Organization (WTO), with Peter Ustinov cast as Peter Sutherland, the brilliant and portly new director general of the GAIT who finally brought …

Panel Iii: International Law, Global Environmentalism, And The Future Of American Environmental Policy, Thomas W. Merrill

Faculty Scholarship

From an American perspective, environmental law has undergone two bouts of centralization in the past three decades. Round one occurred in the 1970's, as Congress federalized vast areas of environmental law that had previously been the province of state and local governments. Round two, which is still in an incipient phase, represents the effort to internationalize environmental law.

The question I would like to address is what can we learn from round one about what is likely to happen in round two. My answer, in a nutshell, is that the primary driving force behind the federalization of environmental law in …

Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill

Faculty Scholarship

The last decade has been a remarkable one for statutory interpretation. For most of our history, American judges have been pragmatists when it comes to interpreting statutes. They have drawn on various conventions – the plain meaning rule, legislative history, considerations of statutory purpose, canons of construction – "much as a golfer selects the proper club when he gauges the distance to the pin and the contours of the course." The arrival of Justice Scalia on the Supreme Court has changed this. Justice Scalia is a foundationalist, insisting that certain interpretational tools should be permanently banned from judicial use. What …

Foreword To Tributes, Robert E. Scott

Faculty Scholarship

Seldom does an institution experience the jolt of four revered and beloved members of the faculty choosing to retire at the same time. When it does occur, as it has this year at the University of Virginia, the sense of loss can be overwhelming. John Hetheringon, John McCoid, Dan Meador and Cal Woodard have been members of this Law Faculty for a combined period of 123 years.T hey embody a collective source of talent, energy, wisdom, and skill as teachers and scholars that is, quite literally, irreplaceable.

Trivial Rights, Philip A. Hamburger

Faculty Scholarship

In the summer of 1789, when the House of Representatives was formulating the amendments that became the Bill of Rights, Theodore Sedgwick of Massachusetts argued against enumerating the right of assembly. The House, he urged, "might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper ... [Was] it necessary to list these trifles in a declaration of rights, under a Government where none of them were …

The Victims Of Nimby, Michael B. Gerrard

Faculty Scholarship

It is a syndrome, a pejorative, and an acronym of our times: NIMBY, or Not In My Back Yard. It has a political arm, NIMTOO (Not In My Term Of Office), an object of attack, LULUs (Locally Undesired Land Uses), and an extreme form, BANANA (Build Absolutely Nothing Anywhere Near Anyone). Acronyms aside, however, the question remains as to whether or not NIMBY has victims. Is anyone hurt by NIMBY?

Many leading voices in the environmental justice movement believe that minority communities are victims of NIMBY. For example, Professor Robert D. Bullard has written that "[t]he cumulative effect of not-in-my-backyard …

The Role Of Existing Environmental Laws In The Environmental Justice Movement, Michael B. Gerrard

Faculty Scholarship

I will focus on what can and cannot be done under the existing statutory and regulatory structures and the common law to protect minority communities from environmental hazards. I will highlight some of the current holes in the legal system to suggest areas where statutory reform might be useful. Fights against these facilities break down between future unbuilt facilities, on the one hand, and existing facilities on the other hand.

A broad array of statutes regulates future facilities, such as landfills, incinerators, interstate highways, and polluting factories. Some of these laws are aimed at providing information and requiring the decision …

The Dark Secret Of Progressive Lawyering: A Comment On Poverty Law Scholarship In The Post-Modern, Post-Reagan Era, William H. Simon

Faculty Scholarship

In 1971, Stephen Wexler argued in "Practicing Law for Poor People" that what poverty lawyers should be doing was, in a word, organizing. I Wexler flaunted a tough-minded disdain, not only for individual claim assertion, but also for the purely individual concerns of particular clients. Instead, he advocated efforts to assist the poor to collective power.

In his 1977 diagnosis of the state of poverty practice, Gary Bellow argued that what legal services lawyers should be doing was "focused case pressure." He proposed aggregating small housing or welfare claims in order to generate pressure on institutions engaged in systemic misconduct …

Curriculum Vitae (Feminae): Biography And Early American Women Lawyers, Carol Sanger

Faculty Scholarship

In this review, Carol Sanger examines the recent surge of interest in the lives of early women lawyers. Using Jane Friedman's biography of Myra Bradwell, America's First Woman Lawyer, as a starting point, Professor Sanger explores the complexities for the feminist biographer of reconciling for herself and for her subject conflicting professional, political, and personal sensibilities. Professor Sanger concludes that to advance the project of women's history, feminist biographers ought not retreat to the comforts of commemorative Victorian biography, even for Victorian subjects, but should instead strive to present and accept early women subjects on their own complex terms.

Taking Subsidiarity Seriously: Federalism In The European Community And The United States, George A. Bermann

Faculty Scholarship

For a principle that has dominated discussions of European federalism for over five years, subsidiarity has received surprisingly poor academic mention. Subsidiarity has been criticized as "inelegant . . .Eurospeak," "the epitome of confusion," and simple "gobbledegook." It has been described by some as nothing new and by others as quite novel and actually quite dangerous. The President of the Commission of the European Communities, said to be an enthusiast of subsidiarity, finds it used at times as an "alibi," and more specifically as "a fig leaf ... to conceal [an] unwillingness to honour the commitments which have already been …

Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Do lawyers facilitate dispute resolution or do they instead exacerbate conflict and pose a barrier to the efficient resolution of disputes? A distinctive characteristic of our formal mechanisms of conflict resolution is that clients carry on their disputes through lawyers. Yet, at a time when the role of lawyers in dispute resolution has captured not only public but political attention, social scientists have remained largely uninterested in the influence of lawyers on the disputing process. This is not to say that academics have ignored the growth in civil litigation in the United States. Economists have developed an extensive literature that …

Considering Zenger: Partisan Politics And The Legal Profession In Provincial New York, Eben Moglen

Faculty Scholarship

History is the narration of the past, and not all valuable history is true. When William Smith, Jr. first wrote his much-admired and widely distributed History of the Province of New-York, in 1756, he ended his narration twenty-four years before his own time, with the arrival of Governor William Cosby in New York on August 1, 1732. In justification of his abrupt termination at this particular point, Smith wrote:

The history of our publick transactions, from this period, to the present time, is full of important and entertaining events, which I leave others to relate. A very near relation …

Facing The Challenge: A Lawyer's Response To Anti-Gay Initiatives, Suzanne B. Goldberg

Faculty Scholarship

We are living in an extraordinary period of gay and lesbian history. As lesbian and gay civil rights gain increasing recognition throughout the country – through small but growing numbers of laws prohibiting sexual orientation discrimination, court rulings protecting lesbian and gay parents' custody of their children, and a historically unprecedented level of positive media coverage – our struggles also have escalated enormously. Not only must we litigate and negotiate for equal opportunity in employment, housing, and parenting rights as always, but also we face a nationally organized and terrifically well-funded assault on our fundamental rights as citizens.

This nationwide …

What Happens When Mediation Is Institutionalized?: To The Parties, Practitioners, And Host Institutions, James J. Alfini, John Barkai, Robert Baruch Bush, Michele Hermann, Jonathan Hyman, Kimberlee Kovach, Carol B. Liebman, Sharon Press, Leonard Riskin

Faculty Scholarship

The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at the 1994 AALS Conference, on the institutionalization of mediation – through courtconnected programs and otherwise. The topic is an important one, because this phenomenon has become increasingly common in recent years. Moreover, the topic seemed especially appropriate for the 1994 program, since Florida – the host state for the conference – was one of the first states to adopt a comprehensive statute providing for court-ordered mediation (at the trial judge's option) in civil disputes of all kinds. The move toward institutionalizing mediation has raised …

Free Speech And The Widening Gyre Of Fund-Raising: Why Campaign Spending Limits May Not Violate The First Amendment After All Symposium On Campaign Finance Reform, Vincent A. Blasi

Faculty Scholarship

Candidates for office spend too much of their time raising money. This is scarcely a controversial proposition. A major impetus for campaign finance reform is the frustration politicians now feel concerning how much time they must devote to courting potential donors, often by methods borrowed from the marketplace that can only be described as demeaning. The situation has gotten worse as electoral merchandising has grown ever more sophisticated and expensive.

A Modest Proposal For A Political Court, Thomas W. Merrill

Faculty Scholarship

I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift, or whether I mean it to be taken seriously.

War Powers: An Essay On John Hart Ely's War And Responsibility: Constitutional Lessons Of Vietnam And Its Aftermath, Philip Chase Bobbitt

Faculty Scholarship

I approached John Ely's' new book with the anticipation of delight, qualified by a certain apprehensiveness. Delight because Ely is almost alone among writers in my solemn field in his ability to write with humor; indeed, he writes in a style that reminds me of the marvelous Joseph Heller. There is no reason, I suppose, for constitutional law professors to be incapable of writing amusing and fresh prose or exposing a false syllogism with the light touch of juxtaposition rather than the heavy bludgeon of irony, but how rare this is! More importantly, Ely's arguments have the satisfying feel of …

Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy Hertz

Faculty Scholarship

For the past two and one-half decades, the Supreme Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions. Under that rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible, the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt. The Supreme Court adopted this stringent standard in Chapman v. California to fulfill the federal …

Thinking To Be Paid Versus Being Paid To Think, Merritt B. Fox

Faculty Scholarship

In the first chapter of The Economic Structure of Corporate Law, Frank Easterbrook and Daniel Fischel make an arresting statement:

... [P]eople who are backing their beliefs with cash are correct; they have every reason to avoid mistakes, while critics (be they academics or regulators) are rewarded for novel rather than accurate beliefs. Market professionals who estimate these things wrongly suffer directly; academics and regulators who estimate wrongly do not pay a similar penalty. Persons who wager with their own money may be wrong, but they are less likely to be wrong than are academics and regulators, who are wagering …

Toward A New Deal Legal History, Eben Moglen

Faculty Scholarship

With this article, Barry Cushman continues the project begun in earlier writings, leading ultimately to a thoroughgoing reconsideration of the legal history of the New Deal. The present work, perhaps the most important to appear so far, brings Cushman's evolving argument up against the most stable – if not altogether the most convincing – element of the traditional history of the New Deal Court. The "Constitutional Revolution of 1937" is now open for reconsideration or, more precisely, the famous "switch in time" that realigned the Supreme Court with the demands of the Roosevelt administration. Cushman argues powerfully – by and …

Contract Renegotiation, Mechanism Design, And The Liquidated Damages Rule, Eric L. Talley

Faculty Scholarship

The common law practice of refusing to enforce contractual penalties has long mystified law and economics scholars. After critiquing the prevailing law and economics analyses of the common law rule, Eric L. Talley reevaluates the penalty doctrine using the game theoretic technique of mechanism design, which facilitates the analysis of multiparty bargaining situations under various assumptions. Using this technique to model the allocational consequences of various enforcement regimes that courts might adopt with respect to stipulated damages clauses, Mr. Talley finds that penalty nonenforcement can increase economic efficiency by discouraging strategic behavior by the parties, thereby inducing more efficient contract …

Four Reasons And A Paradox: The Manifest Superiority Of Copyright Over Sui Generis Protection Of Computer Software, Jane C. Ginsburg

Faculty Scholarship

The "Manifesto Concerning the Legal Protection of Computer Programs" offers an extensive and challenging critique of current intellectual property protection of software. The authors argue strongly that the law should focus on the value of the know-how embodied in programs and the importance of protecting it, rather than on the particular means which might be used to appropriate it. The authors seek to compel reconceptualization of the place of computer programs, and of software authors' creativity, within the domain of intellectual property. However, their brief for change manifests several flaws. Paradoxically, it comes at once both too soon and too …

Institutions As Relational Investors: A New Look At Cumulative Voting, Jeffrey N. Gordon

Faculty Scholarship

The hostile takeover may have become a receding memory, but the problem that the market in corporate control purported to address nevertheless remains. In a world of imperfect competition, the product, capital, and managerial markets may temporarily indulge suboptimal performance by a firm's managers. As cases such as GM, Sears, American Express, and IBM illustrate, a firm with a substantial franchise and substantial financial reserves can sustain deteriorating economic performance over a significant period, resulting in a long slow slide of economic values. Shareholders and society generally will benefit from a mechanism that replaces the firm's incumbent managers well before …

Solomonic Bargaining: Dividing A Legal Entitlement To Facilitate Coasean Trade, Ian Ayres, Eric Talley

Faculty Scholarship

It is a common argument in law and economics that divided ownership can create or exacerbate strategic behavior. For instance, when several persons own the land designated for a proposed stadium, individual sellers may "hold out" for a disproportionate share of the gains from trade. Alternatively, when building a public library would benefit multiple residents, individual buyers may "free ride" on the willingness of others to pay for its construction. Such transaction costs of collective action fall under a variety of analytic rubrics, including the "tragedy of the commons" and the theory of "public goods." Nonetheless, each example of market …

On Public Reason, Kent Greenawalt

Faculty Scholarship

Since the publication of A Theory of Justice in 1971, John Rawls has refined, qualified, and enriched his political philosophy, responding generously and with patient analytical care to difficulties posed by critics. Political Liberalism embodies the major developments in Rawls's thought during those two decades. Rawls continues to be a strong defender of political liberalism, but in various respects his philosophical claims are more modest than those he offered in 1971, and the political life he recommends involves more accommodation to the diverse perspectives and ways of life one expects to find in liberal democracies. In most of the chapters …