Law Commons^™

Domination In The Theory Of Justification And Excuse, George P. Fletcher

Faculty Scholarship

The major currents driving legal theory have largely bypassed the field of criminal law. Neither the economists nor the advocates of critical legal studies ("crits") have had much to say about the theory of criminal responsibility or the proper mode of trying suspects. The economists have fallen flat in applying their rationalist models to the problems of punishing wrongdoers. The "crits" have had little to add-beyond Mark Kelman's one original and provocative article.

Of all the schools on the march in the law schools today, the feminists have had the most to say about the failings of the criminal law. …

The Legal Environment Of International Finance: Thinking About Fundamentals, Merritt B. Fox

Faculty Scholarship

The huge increase in cross border capital flows over the last two decades has profoundly important implications for society in general and the law in particular. These flows give rise to a set of legal problems that are sufficiently distinct and coherent to constitute a legal field of their own. Confirming this observation is the development of a specialized legal practice whose members spend the bulk of their time working on such transactions. Nevertheless, a law school course in international finance is a rarity, even at the schools that train most of the students who ultimately join this practice.

The …

U. S. Federalism And Intellectual Property, Jane C. Ginsburg

Faculty Scholarship

The federal structure of the U.S. government presents interesting questions for intellectual property. Which government, national or state, exercises regulatory authority? Or do both governments play a significant role? Questions of this order cannot be addressed unless one first analyzes what the term "intellectual property" comprehends. Intellectual property includes well-recognized regimes of exclusive rights in inventions (patents), literary, artistic and musical creations (copyrights), and trademarks. But it also covers more elusive, and evolving, interests, such as exploitation of one's personal name and image (right of publicity), trade secrets, and a generalized concern with prevention of acts amounting to unlicensed appropriation …

La Protection Aux Etats-Unis Des Oeuvres D'Art, Jane C. Ginsburg

Faculty Scholarship

French Abstract
Les Etats-Unis sont un marche important d'oeuvres d'art, non seulement pour la vente des tableaux, mais aussi pour !'exploitation de reproductions et d'adaptations des images. Par exemple, en dehors des reproductions traditionnelles telles que celles contenues dans des catalogues et livres d'art et des reproductions sous forme de cartes postales et affiches, une oeuvre d'art originairement corn;ue comme une expression des beaux arts peut s'exploiter telle par exemple une sortie de bain, du papier peint, voire un decor de poubelle. Dans quelle mesure un artiste peut-il etre remunere ou meme s'opposer a J'exploitation commerciale de son oeuvre aux …

Barbara Jordan: Constitutional Conscience, Philip C. Bobbitt

Faculty Scholarship

Many of us learned for the first time in the press accounts following Barbara Jordan's death that she carried with her a small pocket copy of the U.S. Constitution. From some apparently early point, and then throughout her life, this small paper pamphlet was always with her. What was unreported was the fact that within this copy of the Constitution, there was folded a slip of paper on which was written a quotation from Albert Einstein. I do not believe this quotation is written in Barbara Jordan's hand; but it has clearly lain within her copy of the Constitution for …

The Legal Structure Of The Chinese Socialist Market Enterprise, William H. Simon

Faculty Scholarship

China's phenomenal economic growth since 1978 has been accompanied by a cascade of institutional innovation and experimentation. In at least this one sense a hundred flowers are blooming in the People's Republic. The range of institutional forms and their defiance of the conventions of economic organization in both capitalist and socialist societies are impressive.

The Chinese leadership calls the new order by the unfamiliar (and to some, oxymoronic) term "socialist market" economy. Its "market" dimensions include deregulation of most prices, decentralization of decision-making to the household in agriculture and to the enterprise in industry, incentive schemes for peasants, managers, and …

Regulatory Federalism: A Reprise And Introduction, George A. Bermann

Faculty Scholarship

This colloquium, like its predecessor, proceeds on the basis of a series of assumptions. First, it assumes that the federalism dimension of the regulatory state is an important one Gust as is the regulatory dimension of the federal state). In introducing our first colloquium, I suggested that, although determining the content of public policy is critical in a democratic society, also critical is determining the level of government at which the choice of policy is made. Ingolf Pernice remarked then that a federal system is "any legal entity [which is] comprised of states for the purpose of pursuing certain common …

Risk Assessment Perspectives, Peter L. Strauss

Faculty Scholarship

I have a slightly different subtitle for our session today, which I hope our panelists may consider in addressing the many challenges before them: Cost-Benefit Analysis and Risk Assessment under Diminished Resources. Allan Morrison introduced the resource problem at the end of yesterday's session. It is an important element of the problems we face.

I think another element of those problems is finding a reasoned way of addressing these issues. The contrast between reasoned decisionmaking and political football was also nicely in evidence yesterday, perhaps especially strongly for those of us who have been responsible for putting together these presentations. …

Comparative Risk Assessment In New York, Michael B. Gerrard, Deborah Goldberg

Faculty Scholarship

Comparative risk assessment (CRA) is the examination of the relative risks posed by different dangers, with a view to deciding which dangers deserve the most governmental attention. CRA frequently tries to reduce different problems to a common metric, usually the statistical lives saved by a program, so that apples can be weighed against oranges. This article will discuss and assess the growing use of CRA in New York State.

There are two principal arguments for the use of CRA in the environmental context. The first is that we do not have unlimited resources; we cannot move against all problems simultaneously. …

Is There A General Trend In Constitutional Democracies Toward Parliamentary Control Over War-And-Peace Decisions?, Lori Fisler Damrosch

Faculty Scholarship

My hypothesis is that there is a general trend toward subordinating war powers to constitutional control, and that this trend includes a subtrend toward greater parliamentary control over the decision to introduce troops into situations of actual or potential hostilities. UN peace operations present one variant of a recurring problem for constitutional democracies, as do collective security and collective enforcement operations under the auspices of the United Nations or a regional body such as the North Atlantic Treaty Organization (NATO).

Religious Expression In The Public Square – The Building Blocks For An Intermediate Position, Kent Greenawalt

Faculty Scholarship

The problem of religious expression in the public square is not primarily legal in a narrow sense. We are not talking about whether people are allowed to voice certain kinds of opinions or to vote on certain kinds of grounds. The problem is about how citizens and officials in liberal democracies should act. My own position on this problem is an intermediate one, in a sense I shall shortly explain. Its plausibility depends on some sense of the strengths and weaknesses of positions at each end of the spectrum. I shall begin with a thumbnail sketch of these.

Regulatory Cooperation Between The European Commission And U.S. Administrative Agencies, George Bermann

Faculty Scholarship

This Article examines the policies and practices of the European Commission toward various forms of bilateral regulatory cooperation with administrative agencies of the United States. To place this Article's findings in a proper perspective, it is essential to understand both (A) the selection of the European Community (E.C.) as an appropriate overseas regulatory jurisdiction for such cooperation and (B) the reasons for focusing on the European Commission among the various E.C. institutions. Those questions are taken up in this Introduction. Part I describes in some detail the organization and functioning of the Commission. Part II – the core of this …

What Does A White Woman Look Like? Racing And Erasing In Law, Katherine M. Franke

Faculty Scholarship

In significant ways, legal texts produce a narrative of national identity. They weave stories about who we are, what we are committed to, and what we expect of one another, individually and collectively. The concept of justiciability can be understood as a set of rules determining what stories courts are allowed to tell about who we are and who we can be. In this sense, Ronald Dworkin's account of judging as writing ongoing chapters in a chain novel provides a compelling conception of law as both describing where we have been and directing where we are going. If the salience …

Changing Times: The Apa At Fifty, Peter L. Strauss

Faculty Scholarship

In early October 1995, Walter Gellhorn helped to open a National Archives display commemorating the fiftieth birthday of the Administrative Procedure Act ("APA"). That Act had begun to take shape just prior to World War II, when Gellhorn had directed the Attorney General's Committee on Administrative Procedure. Created in response to a political spasm of legislative activity that produced a "reform" bill President Roosevelt vetoed, Gellhorn's committee engaged in a thorough and careful survey of administrative agencies and their procedures. In the end, the committee produced twenty-seven monographs describing the variety of decision-making processes employed by the agencies and a …

Transfers Of Control And The Quest For Efficiency: Can Delaware Law Encourage Efficient Transactions While Chilling Inefficient Ones?, John C. Coffee Jr.

Faculty Scholarship

At first glance, few corporate law principles seem to be better established than the widely prevailing rule that a controlling shareholder may receive a control premium for its shares. From a comparative law perspective, however, this consensus may seem surprising, because the United States stands virtually alone in failing to accord minority shareholders any presumptive right to share in a control premium. Yet, from an economic perspective, the permissive U.S. rule is not surprising because economists generally agree that economic efficiency is promoted by privately negotiated control transfers at premiums not offered to minority shareholders.

The puzzling fact that this …

The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier

Faculty Scholarship

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American.

Those of …

Confusing Punishment With Custodial Care: The Troublesome Legacy Of Estelle V. Gamble, Philip Genty

Faculty Scholarship

For the better part of two centuries, imprisonment has been the primary means of punishment for non-capital offenses in the United States. A person, once convicted, is turned over to an institution that will regulate every minute of her or his life. Yet, despite the central role that prisons have long played in our society, the use of the Constitution to regulate conditions of confinement in prisons is a relatively recent phenomenon. Certainly, part of this has to do with the fact that constitutional litigation did not begin in earnest until the "rediscovery" of the Civil War era civil rights …

Domination In Wrongdoing, George P. Fletcher

Faculty Scholarship

Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs. Both crimes and torts claim victims, however, the victims' responses vary according to context. In criminal cases, the victim responds by hoping that the government will apprehend and successfully prosecute the offender. In tort disputes, the victim responds by demanding compensation.

It is unclear, however, what constitutes wrongdoing. Defining wrongdoing as the violation of rights is unhelpful, for that definition only raises other questions: Who has rights and what is their content? Therefore, to understand the nature of wrongdoing, we should seek a substantive theory …

Comment On Moliterno, Legal Education, Experiential Education, And Professional Responsibility, Lance Liebman

Faculty Scholarship

In attempting to predict and prescribe the future, my vision of the recent history of legal education differs from Professor Moliterno's in certain relevant ways.

I graduated from Law School in 1967. I learned largely through doctrinal courses that delivered steady training in thinking like a lawyer and information about areas of law. These courses exposed me and my classmates to legal lingo and to the standard types of legal arguments. We learned, largely by hearing the teacher and our fellow students, to make verbal moves and to see the strengths and limitations of others' argumentation skills and techniques. We …

Introduction: The Future Of Chinese Law, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

The interaction between the millennial dominant orientations of Chinese culture and the entire impact of modernization and of Marxism-Leninism is a story that is unfolding before our eyes, and we have no neat formula for predicting its outcome.

Trade And Wages: Choosing Among Alternative Explanations, Jagdish N. Bhagwati

Faculty Scholarship

The decline in unskilled workers’ real wages during the 1980s in the United States and the increase in their unemployment in Europe (due to the comparative inflexibility of European labor markets vis-à-vis those in the United States) have prompted a search for possible explanations. This search has become more acute with the evidence that the adverse trend for the unskilled has not been mitigated during the 1990s to date.

A favored explanation, indeed the haunting fear, of the unions and of many policymakers is that international trade is a principal source of the pressures that translate into wage decline and/or …

The Central Mistake Of Sex Discrimination Law: The Disaggregation Of Sex From Gender, Katherine M. Franke

Faculty Scholarship

Contemporary sex discrimination jurisprudence accepts as one of its foundational premises the notion that sex and gender are two distinct aspects of human identity. That is, it assumes that the identities male and female are different from the characteristics masculine and feminine. Sex is regarded as a product of nature, while gender is understood as a function of culture. This disaggregation of sex from gender represents a central mistake of equality jurisprudence.

Antidiscrimination law is founded upon the idea that sex, conceived as biological difference, is prior to, less normative than, and more real than gender. Yet in every way …

Banks Mcdowell, Henry P. Monaghan

Faculty Scholarship

It is very hard for me to get used to the idea that Banks McDowell is retiring from teaching. He and I were colleagues at Boston University more than two decades ago, and I knew him to be a devoted and conscientious person deeply committed to the enterprise of teaching. Banks had great affection for his students, and he took delight in whatever he was able to do to enlarge their horizons.

Integrating The "Underclass": Confronting America's Enduring Apartheid, Olatunde C.A. Johnson

Faculty Scholarship

Douglas Massey and Nancy Denton's American Apartheid argues that housing integration has inappropriately disappeared from the national agenda and is critical to remedying the problems of the so-called "underclass." Reviewer Olati Johnson praises the authors' refusal to dichotomize race and class and the roles both play in creating and maintaining housing segregation. However, she argues, Massey and Denton fail to examine critically either the concept of the underclass or the integration ideology they espouse. Specifically, she contends, the authors fail to confront the limits of integration strategies in providing affordable housing or combating the problem of tokenism. Massey and Denton …

Law And Labor In The New Global Economy: Through The Lens Of United States Federalism, Mark Barenberg

Faculty Scholarship

The heightened economic globalization of the last quarter century presents a welter of new questions for legal scholars, policymakers, and practitioners. In many specialized fields, lawyers and academics are reskilling in comparative and international law in response to the growing importance of the transnational linkages and competition facing economic and regulatory actors in the United States. Concurrently, dramatic economic and political "transitions" in Asia, Latin America, and Eastern Europe have created legal uncertainties and innovations that compound the challenges of transnationalization. Issues of labor and employment law are at the center of both of these epochal transformations – globalization and …

The Constitutional Responsibility Of Congress For Military Engagements, Lori Fisler Damrosch

Faculty Scholarship

The U.S.-led military operation in Haiti has unfolded with minimal violence and few casualties so far. That factual proposition – which is necessarily subject to revision – has important ramifications under both U.S. constitutional law and international law. On the constitutional level, the avoidance of hostilities defused what was poised to become a serious confrontation between the President and the Congress. On the international level, doubts in some quarters about the legitimacy of a forcible intervention, although not entirely allayed, were somewhat quieted with the achievement of a negotiated solution, which enabled U.S. troops to bring about the return to …

Political Correctness In Jury Selection, George P. Fletcher

Faculty Scholarship

The values of equality and freedom are in constant tension, or so some think. The more society stresses equality, the less freedom people have. For example, Bruce Ackerman would abolish inheritance in his utopian society to insure that every generation begins on an equal footing. Many commentators have advocated restrictions on pornography and hate speech in order to protect the likely targets of these traditionally protected uses of free speech. Additionally, Catharine MacKinnon has invoked the principle of equality in the form of protecting disempowered minorities to argue for a restriction on liberty and freedom. Conversely, the more economic freedom …

Shareholder Dividend Options, Zohar Goshen

Faculty Scholarship

This Article proposes a legal norm that shifts discretion over dividend policy from managers to the capital markets (i.e., shareholders). State corporate law could effect such a shift by adopting a rule that mandates shareholder control over the dividend decision. The rule would require every firm to adopt an option mechanism that, at predetermined dates, provided each of the firm's shareholders with the right to select either cash or stock dividends in an amount equal to the shareholder's pro rata share of the firm's earnings. For instance, the law might require that, once a year, the firm offer to each …

Parents As Fiduciaries, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

Traditionally, the law has deferred to the rights of biological parents in regulating the parent-child relationship. More recently, as the emphasis of legal regulation has shifted to protecting children's interests, critics have targeted the traditional focus on parents' rights as impeding the goal of promoting children's welfare. Some contemporary scholars argue instead for a "child-centered perspective," in contrast to the current regime under which biological parents continue to have important legal interests in their relationship with their children. The underlying assumption of this claim is that the rights of parents and the interests of children often are conflicting, and that …

Dolan V. City Of Tigard: Constitutional Rights As Public Goods, Thomas W. Merrill

Faculty Scholarship

When may the government require that citizens waive their constitutional rights in order to obtain benefits the government has no obligation to provide them? The answer, given by the so-called "doctrine" of unconstitutional conditions, is that sometimes the government may condition discretionary benefits on the waiver of rights, and sometimes it may not. The Supreme Court has never offered a satisfactory rationale for this doctrine, or why it "roams about constitutional law like Banquo's ghost, invoked in some cases, but not in others."

The unconstitutional conditions doctrine directs courts not to enforce certain contracts that waive constitutional rights. Perhaps it …