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Articles 1 - 30 of 58
Full-Text Articles in Law
Considering Zenger: Partisan Politics And The Legal Profession In Provincial New York, Eben Moglen
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 …
Studying Contemporary Chinese Law: Limits, Possibilities And Strategy, Stanley B. Lubman
Studying Contemporary Chinese Law: Limits, Possibilities And Strategy, Stanley B. Lubman
Hong Yen Chang Center for Chinese Legal Studies
What can the study of Chinese law bring to the study of China itself? This Article first distills what we have learned. It reviews Chinese legal studies since their revival in the 1960s in the United States, where foreign studies of modem Chinese law has been most vigorous since the People's Republic of China ("PRC") was established. The major themes that emerged from research before the reform decade emphasized the politicization of law, the persistence of traditional cultural influences and the impact of bureaucratic practice on current institutions - all themes which remain important today. Since the advent of reform, …
Property Rights: A View From The Trenches, Michael A. Heller
Property Rights: A View From The Trenches, Michael A. Heller
Faculty Scholarship
How do governments create – or in some countries recreate - basic property rights that citizens demand in the transition to a market economy? My first comment, quite briefly, is on the debate within this Symposium on the relationship between constitutional reforms and the emergence of new property regimes. Second, I will comment on the counterintuitive property rights regime that is emerging from the "big bang" – the post-1989 collapse of the old socialist legal order in Central and Eastern Europe and the former Soviet Union and its replacement with a new, market-oriented system of property rights.
Gay Rights Through The Looking Glass: Politics, Morality, And The Trial Of Colorado's Amendment 2, Suzanne B. Goldberg
Gay Rights Through The Looking Glass: Politics, Morality, And The Trial Of Colorado's Amendment 2, Suzanne B. Goldberg
Faculty Scholarship
Courts have long struggled to resolve the question of how far a community may go in exercising its power to treat minority members differently. Popular prejudice, "community morality" and invidious stereotypes repeatedly have had their day in court as judges work to reconcile equal protection and privacy rights with their own attitudes about the place of people of color, women and gay people in society. In the early 1990s, the tension between the American ideal of equality and the reality of human diversity starkly emerged. A national wave of citizen-sponsored initiatives seeking to amend state constitutions and local charters to …
The Dark Secret Of Progressive Lawyering: A Comment On Poverty Law Scholarship In The Post-Modern, Post-Reagan Era, William H. Simon
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 …
Democracy And Domination In The Law Of Workplace Cooperation: From Bureaucratic To Flexible Production, Mark Barenberg
Democracy And Domination In The Law Of Workplace Cooperation: From Bureaucratic To Flexible Production, Mark Barenberg
Faculty Scholarship
In May of 1993, President Clinton's Commission for the Future of Worker-Management Relations began its investigation of whether a major overhaul of United States labor law is necessary to encourage high-performance workplaces and labor-management cooperation. Even if its recommendations, due in November 1994, do not yield immediate congressional fruit, the Commission's work is likely to influence the study and politics of labor law reform for some time to come. The Commission is chaired by John Dunlop, the eminent labor-relations specialist and former Secretary of Labor. Its membership includes some of the nation's foremost academic and political proponents of far-reaching labor …
Federalism And Health Care Reform: Is Half A Loaf Really Worse Than None?, Richard Briffault
Federalism And Health Care Reform: Is Half A Loaf Really Worse Than None?, Richard Briffault
Faculty Scholarship
Health care reform dominates the domestic agenda of the Clinton Administration. Policy analysts, media pundits, and ordinary citizens are abuzz with the once-arcane terminology of health reform – "managed competition," "single-payer," "regional alliances," "global budgets" – as they ponder the merits and demerits of the leading reform alternatives. At the center of the public debate are questions concerning the role of government in constraining health care costs, maintaining quality, and widening access. But in our federal system there are two governments that can address most domestic problems – the national government and the states – and, although considerable ink has …
Sameness And Subordination: The Dangers Of A Universal Solution, Susan P. Sturm
Sameness And Subordination: The Dangers Of A Universal Solution, Susan P. Sturm
Faculty Scholarship
Judges, Behavioral Scientists, and the Demands of Humanity grapples with one of the most pressing and difficult challenges of our time – how to overcome deep and enduring conflicts that currently divide our community. Professor Burt offers insights into the importance of empathy and identification in breaking down the categories that we use to distance ourselves from the humanity of others and to justify oppression of those we define as outsiders. His solution is hopeful, almost noble. He exhorts judges, social scientists, and by implication, all of us to be our best selves, to focus on how we are part …
The Politics Of Article 9, Robert E. Scott
The Politics Of Article 9, Robert E. Scott
Faculty Scholarship
In the ongoing debate concerning the efficiency and social value of Article 9 of the Uniform Commercial Code, two points are beyond dispute. First, asset-based financing has undergone an enormous transformation since the enactment of Article 9. The most vivid illustration of this is the dramatic increase in the number and size of firms that rely on secured credit as their principal means of financing both ongoing operations and growth opportunities. Previously, with a few exceptions (such as factoring and trust receipts), secured financing principally had served second-class markets as the "poor man's" means of obtaining credit. Now, it has …
Revolution And Judicial Review: Chief Justice Holt's Opinion In City Of London V. Wood, Philip A. Hamburger
Revolution And Judicial Review: Chief Justice Holt's Opinion In City Of London V. Wood, Philip A. Hamburger
Faculty Scholarship
In 1702, in an opinion touching upon parliamentary power, Chief Justice Sir John Holt discussed limitations on government in language that has long seemed more intriguing than clear. Undoubtedly, the Chief Justice was suggesting limitations on government – limitations that subsequently have become quite prominent, particularly in America. Yet even the best report of his opinion concerning these constraints has left historians in some doubt as to just what he was saying and why it was significant.
The case in which Chief Justice Holt was so obscure about matters of such importance, City of London v. Wood, revived the …
Taking Subsidiarity Seriously: Federalism In The European Community And The United States, George A. Bermann
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 …
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
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.
Solomonic Bargaining: Dividing A Legal Entitlement To Facilitate Coasean Trade, Ian Ayres, Eric Talley
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 …
Facing The Challenge: A Lawyer's Response To Anti-Gay Initiatives, Suzanne B. Goldberg
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 …
Institutions As Relational Investors: A New Look At Cumulative Voting, Jeffrey N. Gordon
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 …
Decoupling Sales Law From The Acceptance-Rejection Fulcrum, Jody S. Kraus
Decoupling Sales Law From The Acceptance-Rejection Fulcrum, Jody S. Kraus
Faculty Scholarship
The determination of whether the buyer has accepted or rejected goods provides the sales law solution to the problems of allocating burden of proof, assigning duties to salvage goods in failed transactions, and reducing systematic undercompensation. But one doctrine is unlikely to provide the best solution to each of these distinct problems. Decoupling the rules addressing burden of proof, salvage, and undercompensation from the doctrines of acceptance and rejection, and thus from one another, would significantly improve sales law.
This strategy has a distinguished precedent in the history of sales law. Karl Llewellyn based his objection to the doctrine of …
The Sentencing Guidelines As A Not-So-Model Penal Code, Gerard E. Lynch
The Sentencing Guidelines As A Not-So-Model Penal Code, Gerard E. Lynch
Faculty Scholarship
We are accustomed to thinking about the criminal law, and the procedures for enforcing it, as divided into two separate stages. The first stage – the subject of penal codes and jury trials – concerns the definition of culpable conduct and the adjudication of guilt. The second stage – sentencing – concerns the consequences of conviction for the offender. Only rarely do we acknowledge that the conventional separation of these stages into compartments is highly misleading.
The articles in this Issue of FSR address, in one way or another, the extent to which the concerns of the substantive criminal law …
The Victims Of Nimby, Michael B. Gerrard
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
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 …
Fear And Loathing In The Siting Of Hazardous And Radioactive Waste Facilities: A Comprehensive Approach To A Misperceived Crisis, Michael B. Gerrard
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 …
A Modest Proposal For A Political Court, Thomas W. Merrill
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.
"What About The 'Ism'?" Normative And Formal Concerns In Contemporary Federalism, Richard Briffault
"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 …
Curriculum Vitae (Feminae): Biography And Early American Women Lawyers, Carol Sanger
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.
Foreword To Tributes, Robert E. Scott
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.
Two Social Movements, Thomas W. Merrill
Two Social Movements, Thomas W. Merrill
Faculty Scholarship
Two social movements in the last fifty years have had a profound impact on our understanding of law and the role of the courts in our system of government. One is the civil rights movement. The demand for greater racial and gender equality and other civil rights has changed the face of the law in countless ways. For example, it has called into question – or at least required a fundamental revision in – the traditional understanding that the courts should interpret the Constitution and laws in accordance with their original meaning. Decisions such as Brown v. Board of Education …
Panel Iii: International Law, Global Environmentalism, And The Future Of American Environmental Policy, Thomas W. Merrill
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
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 …
Trivial Rights, Philip A. Hamburger
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 …
Disputing Through Agents: Cooperation And Conflict Between Lawyers In Litigation, Ronald J. Gilson, Robert H. Mnookin
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 …
Four Reasons And A Paradox: The Manifest Superiority Of Copyright Over Sui Generis Protection Of Computer Software, Jane C. Ginsburg
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 …