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Articles 1 - 30 of 80
Full-Text Articles in Law
The Erotic Of Torts, Carol Sanger
The Erotic Of Torts, Carol Sanger
Faculty Scholarship
"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist ... that ... do[es] not respect the line between the intellectual and the sexual" (p. 12). Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means – and what its implications are for …
The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis
The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis
Faculty Scholarship
Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- international custom as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …
Free Speech And Good Character, Vincent A. Blasi
Free Speech And Good Character, Vincent A. Blasi
Faculty Scholarship
Early proponents of the freedom of speech such as John Milton, John Stuart Mill, and Louis Brandeis emphasized the role expressive liberty plays in strengthening the character of persons entrusted with such freedom. These theorists argued that character traits such as civic courage, independence of mind, and the capacity to learn from experience and adapt are nurtured by trusting citizens with dangerous ideas. Today there is much talk about good character in relation to free speech disputes-but all on the side of those who would regulate speakers. It is time to remember that a concern about character cuts both ways …
Understanding The Choice Between Public And Private Equity Financing Of Early Stage Companies: A Comment On Barry And Turki, Ronald J. Gilson
Understanding The Choice Between Public And Private Equity Financing Of Early Stage Companies: A Comment On Barry And Turki, Ronald J. Gilson
Faculty Scholarship
This Comment considers the results of Barry and Turki's research data that indicates that investments perform differently depending on whether innovation is financed by private or public equity investment. The Comment posits two hypotheses for the differential performance. The first highlights ex ante differences between private and public subsamples, that is that the financing choice separates good prospects from bad. The second hypothesis focuses on ex post differences in performance that results from differences in governance structure and incentives created by the structure of public and private equity investment. The ex ante separation hypothesis and the ex post performance hypothesis …
Judicial Resolution Of Issues About Religious Conviction, Kent Greenawalt
Judicial Resolution Of Issues About Religious Conviction, Kent Greenawalt
Faculty Scholarship
What can judges and lawyers learn about religion from those whose field is religious studies, and from others who can illuminate the phenomenon of religion? Using examples provided in Winnifred Fallers Sullivan's paper, I want to place this general question within the fabric of free exercise law.
What I say assumes that some legal issues she raises have reasonably clear answers. Given the cavalier way the Supreme Court turned free exercise law upside down in Employment Division v. Smith, and given its harsh reception of the Religious Freedom Restoration Act (RFRA), which had received overwhelming Congressional support, little in this …
Property And The Right To Exclude, Thomas W. Merrill
Property And The Right To Exclude, Thomas W. Merrill
Faculty Scholarship
The Supreme Court is fond of saying that "the right to exclude others" is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." I shall argue in this Essay that the right to exclude others is more than just "one of the most essential" constituents of property – it is the sine qua non. Give someone the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. Deny someone the exclusion right and they do not …
The Justiciability Of Paraguay's Claim Of Treaty Violation, Lori Fisler Damrosch
The Justiciability Of Paraguay's Claim Of Treaty Violation, Lori Fisler Damrosch
Faculty Scholarship
The U.S. Government's position asserting nonjusticiability of the treaty claims raised by Paraguay in the domestic and international lawsuits is disturbing. The Government's amicus filings at the court of appeals and the Supreme Court denied that Paraguay's claims belonged in federal court (or indeed in any court at all); at the International Court of Justice, the United States admitted a treaty violation but denied the competence of that tribunal to enter a judicial remedy. At one or another phase of these proceedings, the U.S. Government pressed a variety of arguments that (if accepted) would rule out virtually any judicial consideration …
Emerging Statutory And Constitutional Tools For States To Resist Federal Environmental Regulation, Michael B. Gerrard
Emerging Statutory And Constitutional Tools For States To Resist Federal Environmental Regulation, Michael B. Gerrard
Faculty Scholarship
This is a time of high tensions between the federal government and the states over environmental regulation. The flashpoints include actions by the U.S. Environmental Protection Agency (EPA) against states that enact laws shielding environmental audit reports from discovery; the withdrawal of several states from certain regulatory reform programs and delegated programs; and EPA accusations that some states are ignoring many violations of the pollution control laws, and loud denials by state representatives.
The Supremacy Clause of the U.S. Constitution and the complex of federal environmental statutes enacted in the 1970s and 1980s still give Washington the upper hand in …
The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox
The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox
Faculty Scholarship
This Article addresses the appropriate reach of the U.S. mandatory securities disclosure regime. While disclosure obligations are imposed on issuers, they are triggered by transactions: the public offering of, or public trading in, the issuers' shares. Share transactions are taking on an increasingly transnational character. The barriers to a truly global market for equities continue to lessen: financial information is becoming increasingly globalized and it is becoming increasingly inexpensive and easy to effect share transactions abroad. There are approximately 41,000 issuers of publicly traded shares in the world. For an ever larger portion of these issuers, there will be significant …
Ownership Of Electronic Rights And The Private International Law Of Copyright, Jane C. Ginsburg
Ownership Of Electronic Rights And The Private International Law Of Copyright, Jane C. Ginsburg
Faculty Scholarship
When, in response to a French decision upholding the rights of employee journalists to prevent the publisher's unauthorized licensing of electronic rights in the journalists' articles, French newspaper publishers yearn for "American-style copyright," they must imagine a work-made-for-hire nirvana in which publishers dispose of all rights in contributions to their periodicals, heedless of (and legally shielded from) authors' pesty claims for payment or control. To the extent that the work-made-for-hire doctrine applies, the publishing paradise conjured up by these French fantasies of law "reform" is very real indeed. Under U.S. copyright law, employee creators are not statutory "authors;" their employer …
Individual Responsibility For The Investment Of Retirement Savings: A Cautionary View, Jeffrey N. Gordon
Individual Responsibility For The Investment Of Retirement Savings: A Cautionary View, Jeffrey N. Gordon
Faculty Scholarship
These papers, including ones presented earlier this morning, raise questions about an adequate regime of consumer protection in an era in which responsibility for retirement savings and investment decisionmaking is being devolved, increasingly, to individuals. This shift to individual responsibility has also characterized many Social Security reform proposals, previously a bedrock system of publicly determined benefit levels. I find this devolution troubling; I think it is odd for individuals to have this responsibility. Individuals are not good risk bearers of market volatility, both in a financial sense and in a psychological sense. The consequence is that unless individuals are locked …
Why Now Is Not The Time For Constitutional Amendment: The Limited Reach Of City Of Boerne V. Flores, Kent Greenawalt
Why Now Is Not The Time For Constitutional Amendment: The Limited Reach Of City Of Boerne V. Flores, Kent Greenawalt
Faculty Scholarship
When the Supreme Court eviscerated the protection of the Free Exercise Clause in Employment Division v. Smith, religious groups and individuals dismayed by the decision chose to pursue statutory relief rather than a constitutional amendment. Now that the Supreme Court has decided in City of Boerne v. Flores that the resulting statute, the Religious Freedom Restoration Act (RFRA or the "Act"), cannot be justified as a congressional exercise of power under the Fourteenth Amendment, many who care deeply about religious liberty may turn to the amendment process as an alternative. Although disappointed by the Flores decision, I believe it is …
Religious Law And Civil Law: Using Secular Law To Assure Observance Of Practices With Religious Significance, Kent Greenawalt
Religious Law And Civil Law: Using Secular Law To Assure Observance Of Practices With Religious Significance, Kent Greenawalt
Faculty Scholarship
Civil law in the United States rarely helps to enforce religious standards or demands that people perform actions whose significance relates to religious obligations. Yet, some American states do have such involvement with certain observances of Orthodox and Conservative Judaism. Many states enforce kosher requirements, to which Orthodox and some Conservative Jews adhere. The laws, which penalize fraud in the labeling of products as kosher, serve the secular interest in preventing deception of consumers. However, the laws also force the state to decide when religious regulations have been violated.
Orthodox and Conservative Jewish divorces raise a second kind of involvement. …
Police, Community Caretaking, And The Fourth Amendment, Debra A. Livingston
Police, Community Caretaking, And The Fourth Amendment, Debra A. Livingston
Faculty Scholarship
The local police have multiple responsibilities, only one of which is the enforcement of criminal law. Police gather eyewitness accounts in the aftermath of a shooting, but they also assist lost children in locating their parents. Police identify and arrest those who have committed felonies, but they also respond to heart attack victims and help inebriates find their way home. Sometimes police check on the well-being of elderly citizens. As Professor Goldstein said some twenty years ago, "The total range of police responsibilities is extraordinarily broad .... Anyone attempting to construct a workable definition of the police role will typically …
Should The Religion Clauses Of The Constitution Be Amended?, Kent Greenawalt
Should The Religion Clauses Of The Constitution Be Amended?, Kent Greenawalt
Faculty Scholarship
Our subject, whether the religion clauses of the federal constitution should be amended, goes to the heart of relations between government and the practice of religion in our society. These relations deeply affect the health of both religion and government. When public officials persecute some religions and embrace others, the risks are political tyranny and rigid, unthinking, unfeeling, vapid religion. No one wishes that fate for us.
When most people ask whether the religion clauses should be amended, they are really asking whether judicial interpretations have become so misguided that Congress and state legislatures should intervene and invoke the cumbersome …
A Response To The Video, Charles F. Sabel
A Response To The Video, Charles F. Sabel
Faculty Scholarship
Let me preface my remarks by informing you that I am not a lawyer. That means that there are things I don't get and things that I'll say that you may not grasp immediately, because there are certain assumptions we don't share. To illustrate that, let me just tell you, I don't even get lawyer jokes.
For example, when I saw the movie So Goes A Nation, and Sam Sue says, "Law schools teach basic skills," I didn't realize that was a joke until you all laughed at it. So there are many subtleties of this sort that escape me. …
The European Intergovernmental Conference: An American Perspective, George A. Bermann
The European Intergovernmental Conference: An American Perspective, George A. Bermann
Faculty Scholarship
Peter Herzog's career-long interest in the European Communities makes it especially appropriate to include in this festschrift a contribution on what has become the principal mechanism for reforming the treaties that constitute those Communities. I refer of course to the "intergovernmental conferences," or "IGCs" for short. As this festschrift goes to press, the fifteen Member States are submitting the results of the latest IGC – the 1997 Treaty of Amsterdam – to their respective national ratification processes.
As its name suggests, the intergovernmental conference is a gathering of representatives of the Member States to discuss and eventually agree upon amendments …
Modern Mail Fraud: The Restoration Of The Public/Private Distinction, John C. Coffee Jr.
Modern Mail Fraud: The Restoration Of The Public/Private Distinction, John C. Coffee Jr.
Faculty Scholarship
Over their long history, the mail and wire fraud statutes have gone through repeated periods of rapid expansion and contraction. The 1970s saw the flowering of the "intangible rights doctrine," an exotic flower that quickly overgrew the legal landscape in the manner of the kudzu vine until by the mid- 1980s few ethical or fiduciary breaches seemed beyond its potential reach. That doctrine was radically pruned by the Supreme Court in 1987 in the McNally decision, which held that the federal mail and wire fraud statutes reached only those schemes that intentionally sought to deprive their victims of money or …
Recent Publications: Puerto Rico, Christina D. Ponsa-Kraus
Recent Publications: Puerto Rico, Christina D. Ponsa-Kraus
Faculty Scholarship
Ask yourself why you are reading a review of a book about a colony called Puerto Rico in a journal on international law. Isn't Puerto Rico a self-governing Commonwealth? Isn't it part of the United States? If you decide to buy the book, ask yourself where in the bookstore you should look for it. In the international relations section? The U.S. history section? A turn-of-the-century Supreme Court case analyzing the status of Puerto Rico (and other territories "acquired" by the United States in 1901) may provide some guidance: Puerto Rico is "foreign in a domestic sense."' Perhaps the bookstore has …
Crime In Public Housing: Clarifying Research Issues, Jeffrey A. Fagan, Tamara Dumanovsky, J. Phillip Thompson, Garth Davies
Crime In Public Housing: Clarifying Research Issues, Jeffrey A. Fagan, Tamara Dumanovsky, J. Phillip Thompson, Garth Davies
Faculty Scholarship
In recent years, crime and public housing have been closely linked in our political and popular cultures. Tragic episodes of violence have reinforced the notion that public housing is a milieu with rates of victimization and offending far greater than other locales. However, these recent developments belie the complex social and political evolution of public housing from its origins in the 1930s, through urban renewal, and into the present.
Stereotypes abound about public housing, its management, residents, and crime rates. In reality, variation is the norm, and it is these variations that affect crime. The study of crime in public …
Electronic Rights In Belgium And France: General Association Of Professional Journalists Of Belgium V. Central Station (Brussels Court Of First Instance, October 16, 1996; Brussels Court Of Appeals, October 28, 1997); Union Of French Journalists V. Sdv Plurimedia (Strasbourg Court Of Grand Instance, February 3, 1998) Symposium On Electronic Rights In International Perspective, Jane C. Ginsburg
Faculty Scholarship
Like many national presses in Europe, the Belgian press divides ideologically. Each daily newspaper represents the views of a political party, or expresses the perspective of a political or religious belief. Newspaper readers therefore tend to select the newspaper that most closely corresponds to their world-view. Ten publishers of Belgian dailies and weeklies formed a consortium, Central Station, to operate a website that would offer a crossection of all the participating periodicals' articles on a variety of subjects. The articles would appear in print in their separate newspapers in the morning, but would be available that evening on the Central …
Race, Gender, And The Law In The Twenty-First Century Workplace: Some Preliminary Observations, Susan P. Sturm
Race, Gender, And The Law In The Twenty-First Century Workplace: Some Preliminary Observations, Susan P. Sturm
Faculty Scholarship
This article seeks to move beyond the debate between informal and formal legal regulation. Both approaches reflect essential but limited components of a legal regulatory regime. Neither approach adequately responds to the simultaneous challenges of changing organizational structure, racial and gender dynamics, and market-driven demands for flexibility and adaptiveness. The next step requires that we take account of the critiques of formality and informality. This requires embracing the challenge of developing new forms of legal regulation that treat organizational decision makers and incentive structures explicitly as part of the legal regulatory regime. In this view, law consists of a set …
Use Of Force And Constitutionalism, Lori Fisler Damrosch
Use Of Force And Constitutionalism, Lori Fisler Damrosch
Faculty Scholarship
Are constitutional democracies more inclined than other kinds of regimes to observe the international law of the United Nations Charter on use of force? Are they relatively more vulnerable to unlawful behavior by others? How can constitutional democracies ensure fidelity to their underlying constitutional principles when they engage in multinational military operations for preservation or restoration of international peace? These and related questions at the intersection of the international and national legal orders merit careful attention as political structures around the world undergo post-Cold War transformation.
Symposium On Electronic Rights In International Perspective: Introduction, Jane C. Ginsburg
Symposium On Electronic Rights In International Perspective: Introduction, Jane C. Ginsburg
Faculty Scholarship
Recent litigation in the U.S., Germany, the Netherlands, Belgium, and France has placed at issue the electronic publishing rights of employee and freelance journalists, contributors to print periodicals. In all five national controversies, the proprietors of the print publications, without securing the writers' express authorization, disseminated their articles in a variety of electronic media, including CD-ROM, third-party databases, and websites. Judicial resolution of the disputes required parsing the respective rights, under local copyright law (and in some cases, labor law as well), of the authors of the contributions to the periodicals, and of the copyright owners of the collective works …
A New Age Of Federalism, Thomas W. Merrill
A New Age Of Federalism, Thomas W. Merrill
Faculty Scholarship
Federalism has been in the news a lot over the past few years. The Republican-controlled Congress has enacted restrictions on the imposition of unfunded federal mandates on state governments and has passed significant welfare reform, one of the keys to which is greater state freedom in the implementation of welfare programs. The President, although often seen as resisting the more extreme Republican proposals for devolution, is himself something of an advocate for states’ rights. Clinton was a governor before he was President, and in that capacity he experienced a number of frustrations with federal red tape. Perhaps as a result, …
Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard
Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard
Faculty Scholarship
The Superfund program is perhaps environmental law's best Rorschach test, in which those who write about the national effort to clean up contaminated sites disclose as much about their own philosophies of justice, democracy, and economic efficiency as about environmental legislation. The ten books reviewed here show deep conflicts among these values. I argue, based on these disparate judgments, that many of the Superfund debates have an almost religious character. The law has been shaped to fit the view that demonic polluters were, and remain, at work. The law also reflects a sense of higher duty to future generations – …
Careers And Contingency, Gillian Lester
Careers And Contingency, Gillian Lester
Faculty Scholarship
Disagreement among legal scholars over the phenomenon of "contingent employment" – work having limited hours, duration, or security – has led to disparate prescriptions for legal reform. For some, the best solution would be to either leave the market alone, or eliminate existing regulations that drive employers to create contingent jobs. Others believe current regulations do not go far enough and advocate reforms ranging from expanding mandatory benefits and protections to facilitating collective bargaining among contingent workers in order to restore such benefits as long-term security, training, and career advancement. The debate about law reform has centered partly on disputes …
Class Action Litigation In China, Benjamin L. Liebman
Class Action Litigation In China, Benjamin L. Liebman
Faculty Scholarship
Class struggle has moved to China's courtrooms. Since the passage of China's 1991 Civil Procedure Law (CPL), which explicitly permits class action litigation, multiplaintiff groups have brought suits seeking compensation for harm caused by pollution, false advertising, contract violations, and securities law violations. Although administrative bodies continue to resolve most disputes in China, the increasing prevalence of class actions is one aspect of an explosion in civil litigation over the past decade. Class action litigation has the potential to alter the role courts play in adjudicating disputes, increase access to the courts, and facilitate the independence of the legal profession. …
The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller
The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller
Faculty Scholarship
Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse – a tragedy of the commons. Depleted fisheries …
Guns, Youth Violence, And Social Identity In Inner Cities, Jeffrey Fagan, Deanna L. Wilkinson
Guns, Youth Violence, And Social Identity In Inner Cities, Jeffrey Fagan, Deanna L. Wilkinson
Faculty Scholarship
While youth violence has always been a critical part of delinquency, the modern epidemic is marked by high rates of gun violence. Adolescents in cities possess and carry guns on a large scale, guns are often at the scene of youth violence, and guns often are used. Guns play a central role in initiating, sustaining, and elevating the epidemic of youth violence. The demand for guns among youth was fueled by an "ecology of danger," comprising street gangs, expanding drug markets with high intrinsic levels of violence, high rates of adult violence and fatalities, and cultural styles of gun possession …