Law Commons^™

Comments On Preliminary Draft 3 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

The absence of stated principles underlying the articulation of the black letter and comments – principles that the Reporters have said they will provide at the end of the process – continues to trouble the Draft. It remains unclear whether the Reporters are synthesizing positive law, or seeking to reform it. We are not contending that ALI should not push for law reform (even though Principles or some other form might provide a preferable and more transparent vehicle for aspirational endeavors), but we do think the objectives and methodology should be clear from the outset. We remain concerned that ALI’s …

Re-Envisioning Professional Education, Kimberly Austin, Elizabeth Chu, James S. Liebman

Faculty Scholarship

In the dynamic, hyper-connected, and unpredictable 21st century, workplace and career paradigms are rapidly changing. The professions are no exception. Technology has routinized and increased access to the expertise that traditionally set professionals apart from other workers, leading some to forecast professions’ demise. Even if, as we suspect, new forms of complexity and needs for expertise continue to outrun technology, professionals’ lives and careers will diverge dramatically from past norms. In the world we anticipate, the number of theories, diagnoses, and strategies among which each professional — alone or in teams — must make informed and workable judgments will increase …

United States Response To Questionnaire Concerning Copyright: To Be Or Not To Be, Jane C. Ginsburg, June M. Besek, Nathalie Russell

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Hate Speech, Public Assurance, And The Civic Standing Of Speakers And Victims, Vincent A. Blasi

Faculty Scholarship

Jeremy Waldron and James Weinstein have opened up a promising line of inquiry regarding the legitimacy and propriety of hate speech regulation. In doing so, they have succeeded in reinvigorating a subject that had grown academically formulaic even while becoming alarmingly more salient politically and culturally. Together they have enriched our understanding with their specificity of argumentation, intellectual courage, fairminded attentiveness to critics and counter-arguments, comparative law perspective, and genuine originality of conception. I find that each has shown me at least one significant problem in the other’s analysis, a symmetry that I consider a tribute to both.

Social Bargaining In States And Cities: Toward A More Egalitarian And Democratic Workplace Law, Kate Andrias

Faculty Scholarship

A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level – at least in a progressive direction – is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability …

Euro-Yearnings? Moving Toward A "Substantive" Registration-Based Trademark Regime, Jane C. Ginsburg

Faculty Scholarship

In Alan Jay Lerner’s lyric, Professor Henry Higgins laments: "Why can’t a woman be more like a man?" Professor Rebecca Tushnet’s provocative article in effect urges that a U.S. trademark should be more like a European Union trademark, at least with respect to the relationship of registration to substantive protection. The article convincingly exposes the current incoherence in U.S. trademark law – a hybrid between “procedural” and “substantive” registration regimes, in which the traditional emphasis on use-based trademark rights undermines the business-planning benefits that flow from registration.

Before elaborating on the similarities between Tushnet’s suggested reforms of U.S. trademark law …

Governance Of Steel And Kryptonite Politics In Contemporary Public Education Reform, James S. Liebman, Elizabeth R. Cruikshank, Christina C. Ma

Faculty Scholarship

Entrenched bureaucracies and special-interest politics hamper public education in the United States. In response, school districts and states have recently adopted or promoted reforms designed to release schools from bureaucratic control and empower them to meet strengthened outcome standards. Despite promising results, the reforms have been widely criticized, including by the educationally disadvantaged families they most appear to help.

To explain this paradox, this Article first considers the governance alternatives to bureaucracy that the education reforms adopt. It concludes that the reforms do not adopt the most commonly cited alternatives to bureaucracy — marketization, managerialism, or professionalism/craft — and that …

How Should Justice Policy Treat Young Offenders?: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, Bj Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer E. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner

Faculty Scholarship

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

The Future Of State Sovereignty, Joseph Raz

Faculty Scholarship

Advances in the legalisation of international relations, and the growing number of international organisations raise the question whether state sovereignty had its day. The paper defines sovereignty in a way that allows for degrees of sovereignty. Its analysis assumes that while sovereignty has become more limited, a trend which may continue, there is no sign that it is likely to disappear. The paper offers thoughts towards a normative analysis of these developments and the prospects they offer. Advocates of progress towards world government, while wise to many of current defects, are blind to the evils that a world government will …

Attorney-Client Confidentiality: A Critical Analysis, William H. Simon

Faculty Scholarship

Attorney-client confidentiality doctrine is distinguished by its expansiveness and its rigid or categorical form. This brief essay argues that the rationales for these features are unpersuasive. It compares the “strong confidentiality” of current doctrine to a hypothetical narrower and more flexible “moderate confidentiality” and concludes that moderate confidentiality is more plausible. It is unlikely that current doctrine yields benefits that justify its costs.

Finance In The Courtroom: Appraising Its Growing Pains, Eric L. Talley

Faculty Scholarship

This short essay provides an overview of the current state of finance in corporate law, emphasizing its role in a series of pending appraisal cases at the Delaware Supreme Court.

The Agency Costs Of Activism: Information Leakage, Thwarted Majorities, And The Public Morality, John C. Coffee Jr.

Faculty Scholarship

Few doubt that hedge fund activism has radically changed corporate governance in the United States – for better or for worse. Proponents see activists as desirable agents of change who intentionally invest in underperforming companies to organize more passive shareholders to support their proposals to change the target’s business model and/or management. So viewed, the process is fundamentally democratic, with institutional shareholders determining whether or not to support the activist’s proposals.

Skeptics respond that things do not work this simply. Actual proxy contests are few, and most activist engagements are resolved through private settlement negotiations between the activists, who rarely …

Race And The New Policing, Jeffrey Fagan

Faculty Scholarship

Several observers credit nearly 25 years of declining crime rates to the “New Policing” and its emphasis on advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. This model has been adopted in large and small cities, and has been institutionalized in everyday police-citizen interactions, especially among residents of poorer, often minority, and higher crime areas. Citizens exposed to these regimes have frequent contact with police through investigative stops, arrests for minor misdemeanors, and non-custody citations or summons for code violations or vehicle infractions. Two case studies show surprising and troubling similarities in the …

Moore Kinship: Foreword, R.A. Lenhardt, Clare Huntington

Faculty Scholarship

Forty years ago, Mrs. Inez Moore, a widowed black mother and grandmother of little means, secured a victory that likely seemed improbable to many. Without any money, but with the assistance of a team of dedicated Legal Aid attorneys, she took her lawsuit challenging an East Cleveland, Ohio, zoning ordinance that made it a crime for her to live with her grandson all the way to the U.S. Supreme Court and won. The ordinance permitted certain extended family configurations to reside together within the city’s limits, but it prohibited Inez’s family arrangement. Just by bringing her infant grandson John Jr., …

The Sum Is More Public Domain Than Its Parts: Us Copyright Protection For Works Of Applied Art Under Star Athletica's Imagination Test, Jane C. Ginsburg

Faculty Scholarship

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the "separability" predicate to copyright protection of decorative features of useful articles. Adopting the Gordian imagery evoked by other appellate courts, the Sixth Circuit in Varsity Brands lamented "[c]ourts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article's utilitarian function." Star Athletica involved the "surface decorations" of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the …

Criminal Deterrence: A Review Of The Literature, Aaron Chalfin, Justin Mccrary

Faculty Scholarship

We review economics research regarding the effect of police, punishments, and work on crime, with a particular focus on papers from the last twenty years. Evidence in favor of deterrence effects is mixed. While there is considerable evidence that crime is responsive to police and to the existence of attractive legitimate labor-market opportunities, there is far less evidence that crime responds to the severity of criminal sanctions. We discuss fruitful directions for future work and implications for public policy.

Heading Off A Cliff? The Tax Reform Man Cometh, And Goeth, Michael J. Graetz

Faculty Scholarship

The major tax policy challenge of the 21st century is the need to address the nation’s fiscal condition fairly and in a manner conducive to economic growth. But since California adopted Proposition 13 nearly forty years ago, antipathy to taxes has served as the glue that has held the Republican coalition together. Even though our taxes as a percentage of our economy are low by OECD standards and low by our own historical experience, anti-tax attitudes have become even more important for Republicans politically, since they now find it hard to agree on almost anything else. So revenue-positive, or even …

Free Markets, State Involvement, And The Wto: Chinese State Owned Enterprises (Soes) In The Ring, Petros C. Mavroidis, Merit E. Jano

Faculty Scholarship

The WTO has struggled with the treatment of nonmarket economies (NMEs). What was a nonissue in the original GATT (because of the homogeneity of participants) became quite an issue with the accession of formally centrally planned economies, which were not transformed to market economies, at least not in the eyes of the incumbents. Contracting this issue has proved to be so far always wanting, and leaving it to adjudicators has not produced good results either. With respect to Chinese SOEs this risks continuing to be an issue, since the contractually agreed deadline (2016) after which China should not be treated …

The Importance Of "Money", Kathryn Judge

Faculty Scholarship

In a provocative new book, The Money Problem: Rethinking Financial Regulation, Professor Morgan Ricks argues that the government should reclaim control over money creation. Money, Ricks argues, is not just the cash in your pocket or the balance in your checking account. Instead, at least for purposes of financial stability policy, money is best equated with short-term debt. For most of the twentieth century, such debt was issued primarily by regulated commercial banks and insured by the Federal Deposit Insurance Corporation (FDIC), resulting in a fairly stable financial system. As a result of financial innovation, however, much of today's short-term …

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …

Capacitating Services And The Bottom-Up Approach To Social Investment, Charles F. Sabel, Jonathan Zeitlin, Sigrid Quack

Faculty Scholarship

A crucial component of the new social investment paradigm is the provision of capacitating social services aimed at the early identification and mitigation of problems. We argue that conceiving of this paradigm change as a comprehensive and concerted investment is misguided. That perspective ignores more practical, piecemeal approaches in which costs and benefits are clarified through efforts at implementation, rather than estimated ex ante. Similarly, in this bottom-up approach, reform coalitions are not formed through comprehensive initial bargaining, but rather developed on the fly as programmes demonstrate their benefits and create clienteles. A crucial proviso is that decentralized efforts are …

Trade Agreements, Regulatory Sovereignty And Democratic Legitimacy, Bernard Hoekman, Charles F. Sabel

Faculty Scholarship

Governments increasingly are seeking to use bilateral and regional trade agreements to reduce the cost-increasing effects of differences in product market regulation. They also pursue regulatory cooperation independent of trade agreements. It is important to understand what is being done through bilateral or plurilateral mechanisms to address regulatory differences, and to identify what, if any, role trade agreements can play in supporting international regulatory cooperation. This paper reflects on experience to date in regulatory cooperation and the provisions of recent trade agreements involving advanced economies that have included regulatory cooperation. We argue for a re-thinking by trade officials of the …

Arbitration As Wealth Transfer, Deepak Gupta, Lina M. Khan

Faculty Scholarship

Over the last few decades, the Supreme Court has steadily expanded the reach of forced arbitration clauses – clauses that companies embed in the fine print of standard-form contracts to deny consumers and workers the right to band together to sue those corporations in court. While the Court’s decisions that set this trend in motion trace back to the 1980s, the real game changers have been more recent: 2010’s Rent-A-Center v. Jackson, holding that arbitration clauses must be enforced even when they are part of an illegal contract; 2011’s AT&T Mobility v. Concepcion, granting companies the unfettered right …

Stanley V. Illinois'S Untold Story, Joshua Gupta-Kagan

Faculty Scholarship

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this …

Authoritarian Justice In China: Is There A Chinese Model?, Benjamin L. Liebman

Faculty Scholarship

Most recent Western popular and scholarly writing on legal reform in China has focused on two apparently contradictory trends. Since coming to power in 2012 China's new leadership has significantly curtailed the limits of permissible legal activism, highlighted most clearly by the detention and prosecution of numerous leading lawyers and academics. The Party-state has also increased oversight and control over legal education and has explicitly rejected the relevance of Western models of legality for China, including concepts such as judicial independence. At the same time, China's leadership has announced some of the most significant legal reforms in decades, in particular …

Investor-Driven Financial Innovation, Kathryn Judge

Faculty Scholarship

Financial regulations often encourage or require market participants to hold particular types of financial assets. One unintended consequence of this form of regulation is that it can spur innovation to increase the effective supply of favored assets. This Article examines when and how changes in the law prompt the spread of “investor-driven financial innovations.” Weaving together theory, recent empirical findings, and illustrations, this Article provides an overview of why investors prefer certain types of financial assets to others, how markets respond, and how the spread of investor-driven innovations can transform the structure of the financial system. This examination suggests that …

The Power To Wage War Successfully, Matthew C. Waxman

Faculty Scholarship

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. In it he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes’s own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war powers …

Debate Over Environmental Rights And State Constitutional Convention, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

During the election on November 7, the voters in New York state will be presented with the allot question (as they are every 20 years), “Shall there be a convention to revise the constitutionand amend the same?” If the referendum passes, the delegates to the Constitutional Convention will be elected in November 2018, and the Convention’s proposed changes will appear on the ballot, most likely in November 2019.

Many issues are under debate: ethics reform, reorganizing the judiciary, voting rights, and several more. This column focuses on environmental rights.

The Globalization Of Entrepreneurial Litigation: Law, Culture, And Incentives, John C. Coffee Jr.

Faculty Scholarship

The fiftieth anniversary of Rule 23’s adoption in 1966 provides an opportunity to consider how legal change occurs. Law, culture, and incentives all play a role. But which dominates? The adoption of Rule 23 preceded a significant surge in the use of the class action, and some areas of litigation came to depend on Rule 23’s availability (e.g., securities litigation, antitrust litigation, and, for a time, mass torts litigation). Perhaps even more importantly, Rule 23 spurred the growth of the plaintiff’s bar, enabling small firms with a handful of lawyers to develop into major institutional firms of one hundred or …

Is The Future Of Law A Driverless Car? Assessing How The Data Analytics Revolution Will Transform Legal Practice, Eric L. Talley

Faculty Scholarship

Machine learning and artificial intelligence technologies (“data analytics”) are quickly transforming research and practice in law, raising questions of whether the law can survive as a vibrant profession for natural persons to enter. In this article, I argue that data analytics approaches are overwhelmingly likely to continue to penetrate law, even in domains that have heretofore been dominated by human decision makers. As a vehicle for demonstrating this claim, I describe an extended example of using machine learning to identify and categorize fiduciary duty waiver provisions in publicly disclosed corporate documents. Notwithstanding the power of machine learning techniques, however, I …