Law Commons^™

Federal Criminal Law, Congressional Delegation, And Enforcement Discretion, Daniel Richman

Faculty Scholarship

Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, Professor Daniel Richman argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer …

Toward A Principled Interpretation Of The Commerce Clause, Thomas W. Merrill

Faculty Scholarship

Formalism is the jurisprudence of rules. Functionalism is the jurisprudence of balancing tests. If forced to choose between formalism and functionalism, I would probably come down on the side of formalism. I would not do so, however, because there is some meta-rule that prescribes formalism. Rather, it would be because formalism, on balance, has better consequences than functionalism – in other words, because there are good functionalist reasons to be a formalist.

Where I part company with many constitutional formalists is not so much over the desirability of rules as opposed to ad hoc balancingbut rather over the generality and …

Realization As Subsidy, David M. Schizer

Faculty Scholarship

Perhaps no concept in tax law is so well established, and yet so widely criticized, as realization, the rule that defers tax on appreciated property until it is sold. In this Article, Professor Schizer offers a new justification for realization: It is a subsidy for savings. The recent reduction in the capital gains tax rate suggests that Congress wants such a subsidy, the author observes. He then argues that realization has a significant advantage as a subsidy. It is credible, in that taxpayers expect it to strvive long enough for them to collect it This is important, Professor Schizer then …

Secret Knowledge Of Genocide: British Failure To Disclose The Killing Of Jews In 1941, Kent Greenawalt

Faculty Scholarship

In the late summer and early autumn of 1941, the British military intercepted coded German radio messages that revealed that German troops were killing large numbers of Jewish civilians in German-occupied parts of the Soviet Union. The British did not make this knowledge public at that time, nor did they use their still classified records during the war crimes trials after the end of World War II.

Commentators more expert than I have addressed themselves to the question of whether the British had a legal obligation to disclose the information from the coded messages. These remarks concentrate on the possible …

Declining Homicide In New York City: A Tale Of Two Trends, Jeffery Fagan, Franklin E. Zimring, June Kim

Faculty Scholarship

The mass media pay plenty of attention to crime and violence in the United States, but very few of the big stories on the American crime beat can be classified as good news. The driveby shootings and carjackings that illuminate nightly news broadcasts are the opposite of good tidings. Most efforts at prevention and law enforcement seem more like reactive attempts to contain ever expanding problems rather than discernable public triumphs. In recent American history, crime rates seem to increase on the front page and moderate in obscurity.

The recent decline in homicides in New York City is an exception …

Does The Constitution Require That We Kill The Competitive Goose? Pricing Local Phone Services To Rivals, William J. Baumol, Thomas W. Merrill

Faculty Scholarship

This Article concludes a series by these authors and Professors J. Gregory Sidak and Daniel F. Spulber, published last year in this journal. Here, Professors Baumol and Merrill address the issues surrounding the pricing of local phone services to long distance rivals, clarifying their points of agreement and disagreement with Sidak and Spulber. In their previous articles, Sidak and Spulber argued that the movement toward competition in local telephone service should be accompanied by substantial compensation to existing local telephone carriers, a view that Baumol and Merrill do not share. Rather, they note three points of disagreement between Sidak and …

Putting Sex To Work, Katherine M. Franke

Faculty Scholarship

When I was living in New Haven a number of years ago, a miracle happened that drew people by the thousands to witness evidence of the Divine. A crucifix had been found to appear in the body of an oak tree in the middle of Worchester Square. I went – after all, how often do you get to see that kind of thing? Not surprisingly, at first I couldn't see anything but the usual trunk and limbs of a tree. Yet a believer took the time to show me what was really there, something that my untrained eye could not …

Gender Sex Agency And Discrimination: A Reply To Professor Abrams, Katherine M. Franke

Faculty Scholarship

According to the Equal Employment Opportunity Commission, sexual harassment is the fastest-growing area of employment discrimination. In fact, the annual number of sexual harassment complaints filed with the EEOC has more than doubled in the last six years. No one, or at least no one who has given this problem her serious attention, can deny that workplace sexual harassment is a grave problem and that it significantly impedes women's entrance into many sectors of the wage labor market.

Notwithstanding these impressive numbers, sexual harassment legal doctrine remains remarkably undertheorized – particularly by the Supreme Court. For these and other reasons, …

Autonomy Through Separation?: Environmental Law And The Basic Law Of Hong Kong, Benjamin L. Liebman

Faculty Scholarship

One hundred days after taking office as Chief Executive of the Hong Kong Special Administrative Region (Hong Kong SAR) of the People's Republic of China, Tung Chee-hwa pledged both to take steps to improve Hong Kong's environment, and to increase coordination of environmental policy with officials in neighboring Guangdong Province. Tung's comments marked a rhetorical shift from environmental policy in British Hong Kong: eight years earlier, the Hong Kong government's first White Paper on environmental policy, Pollution in Hong Kong – A Time to Act, made only passing mention of China. Yet the White Paper was not alone in …

Is There A Future For Future Claimants After Amchem Products, Inc. V. Windsor?, Alex Raskolnikov

Faculty Scholarship

In September 1990, the Chief Justice of the U.S. Supreme Court appointed an Ad Hoc Committee on Asbestos Litigation in response to what was widely perceived as a "'failure of the federal court system to perform one of its vital roles in our society.'" Less than a year later, the Judicial Panel on Multidistrict Litigation transferred all untried asbestos cases to the eastern district of Pennsylvania for pretrial proceedings. In January 1993, these proceedings produced a global settlement class action of historic proportions, which the district court eventually approved in August 1994. In May 1996, in Georgine v. Amchem Products, …

Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard Harcourt

Faculty Scholarship

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …

Compensation And The Interconnectedness Of Property, Thomas W. Merrill

Faculty Scholarship

Professor Joseph Sax's scholarship on the Takings Clause combines the craft of a first-class lawyer with the passion of a visionary. The good lawyer that he is, Sax's scholarship reflects a deep understanding of Supreme Court case law, legal history, and the practical dimensions of various kinds of land use disputes. Yet his work on takings is not animated by any desire for mere doctrinal tidiness. It is driven by a distinctive vision – one in which the earth's resources are becoming increasingly interconnected and in which there is an increasing need for the government to resolve conflicts regarding the …

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 …

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. …

Marriage As Relational Contract, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The evolution of marriage from a relationship based on status to one that is regulated by contractual norms achieved a milestone of sorts recently with the enactment of the Louisiana Covenant Marriage Act. Under this statute, couples entering marriage can choose to have the termination of their relationship regulated under conventional no-fault divorce rules, or they can voluntarily undertake a greater commitment to their marriage. For couples who select covenant marriage, either party can terminate the relationship on fault grounds, but unilateral termination of the marriage is available only after a substantial waiting period. The principal impact of the statute …

The Internal Relations Of Government: Cautionary Tales From Inside The Black Box, Peter L. Strauss

Faculty Scholarship

Both the structure of the Constitution and elementary civics texts imagine an Executive Branch under the close, unitary control of an elected chief executive, the President. Doubtless from the start, and unmistakably in the administrative state, the reality has been quite different. Those to whom Congress has delegated authority to act, particularly in that domain that we have in mind when invoking a "government of laws," conduct their business within a web more aptly described as coordination than control. In regulatory matters, the coordinating impulses run through the Department of Justice ("DOJ") and, increasingly, the Office of Information and Regulatory …

Global Labor Rights And The Alien Tort Claims Act, Sarah H. Cleveland

Faculty Scholarship

Are labor rights human rights? Are some worker rights so fundamental that must be respected by all nations, and all corporations, under all circumstances? If so, who has the authority to define such rights, and how should they be enforced? What is the effect on the global economy of enforcing international worker rights? These are some of the questions confronted by the authors of Human Rights, Labor Rights, and International Trade, a compilation of essays by an international group of scholars, labor rights activists, and corporate executives addressing contemporary topics in the dialectic among labor, trade, and human rights.

The Challenges Of Investigating Section 5k1.1 In Practice, Daniel Richman

Faculty Scholarship

From the very beginning, almost everyone familiar with the sentencing guidelines has recognized that substantial assistance motions pose a severe threat to the goal of horizontal equity in sentencing. The problem stems in part from the fact that any scheme using sentencing leniency to reward cooperation reduces the likelihood that two defendants of similar culpability and criminal history will receive the same sentence if one cooperates and the other doesn't. The damage, however, is potentially magnified by the particular system established by the federal guidelines: The absence of clear guidelines as to how cooperators should be treated makes it likely …

"Thinking Like A Lawyer" About Ethical Questions, William H. Simon

Faculty Scholarship

Suppose you had to pick the two most influential events in the recent emergence of ethics as a subject of serious reflection by the bar. Most likely, you would name the Watergate affair of 1974 and the appearance a few years earlier of an article by Monroe Freedman. The article was a discussion of what Freedman called the "Three Hardest Questions" surrounding the responsibilities of criminal defense lawyers^.

Of the two events, Watergate is the most famous but, for our purposes, the least important. It raised no challenging issues of professional responsibility. The lawyer conduct in Watergate that shocked …

New York State's Brownfields Programs: More And Less Than Meets The Eye, Michael B. Gerrard

Faculty Scholarship

New York, as the nation's second most populous state, and one of its oldest and most urban, has an abundance of brownfields-slightly contaminated properties that were formerly used for industrial purposes, but that are now unused or underused, and ripe for redevelopment if they can be cleaned up. Thus, it may be surprising that New York is one of the few states without a comprehensive statute or regulation for the voluntary cleanup of brownfields.

There is, however, more here than meets the eye. New York has three important programs and several smaller ones that provide procedures, money, or incentives for …

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 …

Why Ownership Matters? Entrepreneurship And The Restructuring Of Enterprises In Central Europe, Roman Frydman, Marek P. Hessel, Andrzej Rapaczynski

Faculty Scholarship

This paper, based on a study of mid-sized firms in the Czech Republic, Hungary, and Poland, seeks to explain the reasons behind the marked impact of ownership on firm performance which has been observed in a number of studies in Eastern Europe and other parts of the world. Focusing in particular on the differential impact of ownership on revenue and cost performance, the paper argues that privatized firms controlled by outside investors are more entrepreneurial than those controlled by corporate insiders or the state. The paper provides evidence that all state and privatized firms in transition economies engage in similar …

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

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:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …

Reflections In A Distant Mirror: Japanese Corporate Governance Through American Eyes, Ronald J. Gilson

Faculty Scholarship

For the last ten years, Japanese corporate governance has served as a distant mirror in whose reflection American academics could better see the attributes of their own system. As scholars came to recognize that the institutional characteristics of the American and Japanese systems were politically and historically contingent, other countries' approaches became serious objects of study, rather than just way stations on the road to convergence. One learned about one's own system from the choices made by others.

As it came to be conceived, the Japanese corporation of the 1980s represented quite a different method of organizing production. Styled the …

Towards A Model Penal Code, Second (Federal?): The Challenge Of The Special Part, Gerard E. Lynch

Faculty Scholarship

The Model Penal Code is among the most successful academic law reform projects ever attempted. In the first two decades after its completion in 1962, more than two-thirds of the states undertook to enact new codifications of their criminal law, and virtually all of those used the Model Penal Code as a starting point. The Model Penal Code was influential in a variety of different ways. First, the very notion of a systematic codification of criminal law received a dramatic boost from the Model Penal Code. Apart from the degree to which any particular state recodification resembled the Model Penal …

Controlling Corporate Agency Costs: A United States-Israeli Comparative Law, Zohar Goshen

Faculty Scholarship

The "Corporation" assumes a central position in modem economic life. This is due mainly to the fact that major portions of our economic activities are performed by corporations. Numerous authors have pondered the essence of the corporate phenomenon, proposing various theories for the uniqueness of the corporation as opposed to other possible structures for operating a business. The main line of analysis focuses on the central characteristic of the modem corporation: the separation of ownership and control. Managing a business through the means of a corporation allows one to exploit the advantages of specialization. On one hand, shareholders benefit from …

Authors As "Licensors" Of "Informational Rights" Under U.C.C. Article 2b, Jane C. Ginsburg

Faculty Scholarship

U.C.C. Articles 2B of the Uniform Commercial Code was designed primarily to regulate online and mass market transactions, particularly the licensing of computer software. Its effects, however, will extend to authors of works other than computer software. This Article considers the effects Article 2B would have on dealings between those authors and the exploiters of the authors' works. By reducing procedural barriers to the formation of licenses, Article 2B would make it all too easy for an author to assent to contract terms that may heavily favor an exploiter of the author's work. On the other hand, default contract terms …

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 – …

Dogmas Of The Model Penal Code, George P. Fletcher

Faculty Scholarship

The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is …