Law Commons^™

Paradigms Lost: The Blurring Of The Criminal And Civil Law Models – And What Can Be Done About It, John C. Coffee Jr.

Faculty Scholarship

Ken Mann's professed goal is to "shrink" the criminal law. To realize this worthy end, he advocates punitive civil sanctions that would largely parallel criminal sanctions, thereby reducing the need to use criminal law in order to achieve punitive purposes. I agree (heartily) with the end he seeks and even more with his general precept that "the criminal law should be reserved for the most damaging wrongs and the most culpable defendants." But I believe that the means he proposes would be counterproductive – and would probably expand, rather than contract, the operative scope of the criminal law as an …

Zero-Sum Madison, Thomas W. Merrill

Faculty Scholarship

Has the fabric of American constitutional law been permanently "distorted" by the Framers' preoccupation with protecting private property against redistribution? Jennifer Nedelsky thinks so. In this provocative study of how the idea of property shaped the political thought of the Framers and the institutions they designed, she argues that James Madison's constitutional philosophy was driven by fear that a future propertyless majority would seek to expropriate the holdings of a minority. To combat this danger, Madison sought to create a structure of government that would ensure the dominance of the propertied elite. Madison's obsessive fear of redistribution spread to the …

A Reply: Imperfect Bargains, Imperfect Trials, And Innocent Defendants, Robert E. Scott

Faculty Scholarship

To understand what is and is not wrong with plea bargaining, one must understand the relationship of bargains to trials. Unsurprisingly, we disagree with much of what Judge Frank Easterbrook and Professor Stephen Schulhofer say about that relationship. Most of those disagreements need not be rehearsed here; readers attentive enough to wade through their essays and ours will pick up the key points readily enough. But there is one point where the dispute is at once sharp and hidden. It has to do with the fact that both trials and bargains are flawed.

That fact might seem obvious, but the …

Judgment And Reasoning In Adolescent Decisionmaking, Elizabeth S. Scott

Faculty Scholarship

Few people believe that five year olds and fifteen year olds think, act or make decisions in the same way. The question is whether and how the law should respond to developmental differences. Traditionally, childhood and adulthood have been two dichotomous legal categories, demarcated by the age of majority. This conception has been contested in recent years, as has the premise that all minors are incompetent to make decisions and function as legal actors. Fueled by the controversy over adolescent access to abortion, an advocacy movement has emerged that challenges the authority of parents and the state over the lives …

The Rulemaking Continuum, Peter L. Strauss

Faculty Scholarship

The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the judicial …

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Hungarian Legal Reform For The Private Sector, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller

Faculty Scholarship

Hungary is in the midst of a fundamental transformation toward a market economy. Although Hungary has long been in the forefront of efforts to reform socialism itself, after 1989 the goals of reform moved from market socialism toward capitalism, as the old Communist regime lost power and the idea of widespread private ownership gained acceptance. The legal framework – the "rules of the game – is now being geared toward encouraging, protecting, and rewarding entrepreneurs in the private sector.

This Article describes the evolving legal framework in Hungary in several areas: constitutional, real property, intellectual property, company, foreign investment, contract, …

The Legal Framework For Private Sector Development In A Transitional Economy: The Case Of Poland, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller, Peter G. Ianachkov, Daniel T. Ostas

Faculty Scholarship

The economies of Central and Eastern Europe are in the midst of an historic transition from central planning and state ownership to market driven private sector development. This transition requires comprehensive changes in the "rules of the game" – i.e. the legal framework for economic activity. Markets presuppose a set of property rights and a system of laws or customs that enable the exchange of those rights. The legal framework in a market economy has at a minimum three basic functions:

1. to define the universe of property rights in the system,
2. to set the rules for the entry and exit …

The Role Of Local Control In School Finance Reform, Richard Briffault

Faculty Scholarship

Local control is a puzzle, or rather, a series of related puzzles that has both structured and hindered the uncertain development of school finance reform. The first puzzle is really a paradox: courts and commentators generally assume that local control of education exists, that it is a basic organizational principle of American public elementary and secondary education, and a norm that must be taken into account when the existing school finance system is challenged. Yet for the law of local government generally, local control is the exception, not the rule. The ground rule of state-local relations is state control and …

The Third Man, Philip C. Bobbitt

Faculty Scholarship

Sandy is a divided man. On the one hand he is captivated by the notion of the theoretical and the explanatory, an idea that has captivated all of us since the 17th century. For Descartes, for Newton, for Freud, for Marx, for Levinson: theory is the foundation for understanding, and understanding for practice. How do they calculate the attraction among the planets? They apply the inverse square law according to the theories of Newton. How does Freud cure his patients: he explains to them why they've been behaving so peculiarly; he does this by expositing his theory. How does Marx …

Revisiting Overton Park: Political And Judicial Controls Over Administrative Actions Affecting The Community, Peter L. Strauss

Faculty Scholarship

Overton Park is a 342-acre municipal park lying close to downtown Memphis, Tennessee, in one of that city's better residential areas. Citizens to Preserve Overton Park, Inc. v. Volpe is a Supreme Court decision frequently cited for its general propositions about judicial review of informal administrative action that, to the citizens of Memphis, was one way-station in a more than two-decade struggle concerning whether and where an inner-city expressway, part of Interstate 40, would be built. Overall, the story of that struggle reveals a complex brew of national and local politics about the marriage of highway convenience to urban amenity; …

M Is For The Many Things, Carol Sanger

Faculty Scholarship

People have gotten quite a few things about mothers and motherhood wrong over the last 700 or so years. Educators, historians, jurists, philosophers, physicians, social workers, and theologians have been telling us what mothers are like: what they need, how they feel, what pleases them, how and how well they think. Mothers didn't love their children in the fifteenth century and loved them too much in the 1950s. Black mothers felt no pain in childbirth, and white mothers felt no pleasure in intercourse. The obligations of motherhood, physical and social, have been used to explain why women should not work, …

Foreword, Lee C. Bollinger

Faculty Scholarship

The mass media are too important to American democracy, too capable of causing injury, and too easy a target for the perennial wish to find a scapegoat for the country's ills ever to be very far from the center of public attention and debate. That is certainly true today. And, though every generation probably thinks that it stands at a crossroads on the question what to do with the media, I would nevertheless venture to say that the issues of our time are more serious, and more complex, than ever before. One can safely predict, in any event, that we …

Cleaning House: Environmental Hazards Can Undermine A Property's Use And Value, Michael B. Gerrard

Faculty Scholarship

Numerous horror movies and books depict the woes that befall fictional homeowners who don't know or care that they are living too close to cemeteries or brooding woods or scenes of hauntings.

However, even the vivid imaginations of filmmakers and novelists can't conjure up some of the real-life horrors that environmental hazards can create for property owners. These hazards can destroy the value and salability of property, render it unusable for its intended purpose, and burden owners with clean-up costs, fines and lawsuits.

Fortunately, an alert eye and inexpensive tests can identify most common environmental dangers.

Natural Rights And Positive Law: A Comment On Professor Mcaffee's Paper, Philip A. Hamburger

Faculty Scholarship

Were the rights retained by the people defined by positive law? This is the issue explored by Professor McAffee and various other scholars who dispute the history of the Ninth Amendment. Surveying the work of these other historians, Professor McAffee distinguishes between those who argue that the framers and ratifiers were "positivists" and those who attribute to the framers and ratifiers a so-called "natural-law" or "natural-rights" perspective-the latter being the view that the rights retained by the people included rights not delineated by the United States Constitution. McAffee rejects this latter point of view in favor of the positivist interpretation …

The Judicial Prerogative, Thomas W. Merrill

Faculty Scholarship

In John Locke's account of separation of powers, the executive is not limited to enforcing the rules laid down by the legislature. The chief magistrate also exercises the prerogative, a power "to act according to discretion for the public good, without the prescription of the law and sometimes even against it. "Locke explained that such a discretionary power is required because "it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigor on …

Conference On The Federal Sentencing Guidelines, Panel 3: The Allocation Of Discretion Under The Guidelines, Daniel J. Freed, Gerard E. Lynch, Steven M. Salky, Maria Rodriguez Mcbride, Vincent L. Broderick

Faculty Scholarship

The guidelines have shifted the locus of discretion from the judge to the prosecutor. This transfer has drastically changed sentencing because the prosecutor's role is very different from the judge's role.

Before the guidelines, the prosecutor's role in sentencing was minimal. The prosecutor could put a cap on the sentence by accepting a plea to a charge with a low maximum, but there was virtually no instance in which the charge would put a floor under the judge's sentence. The judge, on the other hand, could sentence however he liked. Not only was the judge's decision correct because it was …

Insider Trading In A Globalizing Market: Who Should Regulate What?, Merritt B. Fox

Faculty Scholarship

Trading by an insider on the basis of material non-public corporate information violates the securities laws of the United States and of many, but not all, other countries. As the market for securities becomes increasingly global, the question of whose rules should apply to any particular transaction will arise with increasing frequency. This article addresses that question.

Each country's regime concerning insider trading – which transactions, if any, to ban, and how to do so – has largely evolved through consideration of transactions that are entirely domestic in character and impact. In these transactions, the issuer's state of incorporation and …

Searching For The Rule Of Law In The Wake Of Communism, George P. Fletcher

Faculty Scholarship

Of all the dreams that drive men and women into the streets, the "rule of law" is the most curious. We have a pretty good idea of what we mean by "free markets" and "democratic elections." But legality and the "rule of law" are ideals that are opaque even to legal philosophers. Thus, we have reason to puzzle whether political changes in Eastern Europe represent a renewed commitment to the rule of law. What constitutes living under the rule of law after Communism? What would count as achieving "a-state-based-on-law" – to use an expression popular in the last days of …

Six Conservatives In Search Of The First Amendment: The Revealing Case Of Nude Dancing, Vincent A. Blasi

Faculty Scholarship

The future of political freedom in the United States hardly turns on whether women have a First Amendment right to dance in the nude in bars and peep shows. The future of artistic freedom is perhaps implicated by this question, but only if the law's demand for general principle prohibits judges from treating expressive nudity in those environments as fundamentally different from expressive nudity in ballet performances, museum exhibitions, and films. Barnes v. Glen Theatre, Inc. is an interesting and potentially important case not because of the significance of the specific issue it decided, but because it provoked a lively …

Procedural Due Process Rights Of Incarcerated Parents In Termination Of Parental Rights Proceedings: A Fifty State Analysis, Philip Genty

Faculty Scholarship

Disruption of families through incarceration of parents has become an increasingly serious problem over the past decade. The prison population has grown dramatically, and for women prisoners the increases in the population are particularly striking. From 1980 through 1990, the number of women incarcerated in state and federal prisons increased from 13,420 to 43,845, an increase of 227 percent. In a single year, from 1988 to 1989, the number of incarcerated women increased by 24.4 percent. In 1990 there were an additional 37,844 women in local jails. For men the prison population increased by 130 percent from 316,401 to 727,398 …