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Full-Text Articles in Law

Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan Jan 2003

Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan

Faculty Scholarship

The phenomenal growth of drug courts and other forms of "problem-solving" courts has followed a pattern that is characteristic of many successful innovations: An individual or small group has or stumbles upon a new idea; the idea is put into practice and appears to work; a small number of other actors adopt the innovation and have similar experiences; if there is great demand for the innovation – for example, because it responds to a widely-perceived crisis or satisfies an institutional need and resolves tensions within organizations that adopt it – the innovation rapidly diffuses through the networks in which the early adopters ...


Recent Cases: Appellate Procedure - Force Of Circuit Precedent - Ninth Circuit Holds That Three-Judge Panels May Declare Prior Cases Overruled When Intervening Supreme Court Precedent Undercuts The Theory Of Earlier Decisions, Robert J. Jackson Jr. Jan 2003

Recent Cases: Appellate Procedure - Force Of Circuit Precedent - Ninth Circuit Holds That Three-Judge Panels May Declare Prior Cases Overruled When Intervening Supreme Court Precedent Undercuts The Theory Of Earlier Decisions, Robert J. Jackson Jr.

Faculty Scholarship

The nation's courts of appeals have struggled to devise a coherent approach to harmonizing existing circuit case law with intervening decisions of the Supreme Court.' When the Court directly overrules a decision of a court of appeals, it is agreed that the overruled decision loses the force of law. But when a Supreme Court opinion disfavors a circuit's jurisprudential theory, the courts of appeals must determine to what extent cases relying on the rejected theory remain good law. Recently, in Miller v. Gammie (Gammie II),2 the United States Court of Appeals for the Ninth Circuit, sitting en ...


The Making Of The Second Rehnquist Court: A Preliminary Analysis, Thomas W. Merrill Jan 2003

The Making Of The Second Rehnquist Court: A Preliminary Analysis, Thomas W. Merrill

Faculty Scholarship

The Supreme Court is implicitly assumed to have a certain unity of character under each Chief Justice. Hence, we refer to the "Marshall Court," the "Warren Court," and the "Rehnquist Court." A closer look at history reveals that this assumption of a natural Court defined by the tenure of each Chief Justice is often misleading. The Marshall Court had a different character late in its life than it did in its early years. Similarly, the Warren Court became distinctively more liberal and activist after 1962 when Felix Frankfurter retired and was replaced by Arthur Goldberg.

Although the Rehnquist Court is ...


On Copyright’S Communications Policy, Tim Wu Jan 2003

On Copyright’S Communications Policy, Tim Wu

Faculty Scholarship

There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that new and better technologies of infringement have made it too easy to copy expressive works. Easy copying, they say, threatens the basic incentive to create new works; hence, new rights and remedies are needed to “restore the balance.” Most academic critics complain, instead, that a newly enlarged copyright and new mechanisms of technological self-help give content owners unprecedented levels of control over content. This, in one version of the argument, threatens the creativity and progress that copyright is supposed to foster; in another ...


Privatization As Delegation, Gillian E. Metzger Jan 2003

Privatization As Delegation, Gillian E. Metzger

Faculty Scholarship

Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of ...


Supreme Court Review Of State-Court Determinations Of State Law In Constitutional Cases, Henry Paul Monaghan Jan 2003

Supreme Court Review Of State-Court Determinations Of State Law In Constitutional Cases, Henry Paul Monaghan

Faculty Scholarship

The decision in Bush v. Gore and particularly Chief Justice Rehnquist's concurring opinion were widely criticized for their unwarranted intrusion upon the "authoritative" status of the Florida Supreme Court in determining the meaning of Florida election law. This Article rejects the merits of that criticism. It proposes the thesis that the Supreme Court has ancillary jurisdiction to review state-court determinations of state law in cases where the Constitution or ftderal law imposes a duty of fidelity to prior state law (t1) and the claim is that the state court materially and impermissibly departed from that law at a ...


For Eugene Rostow, Philip Chase Bobbitt Jan 2003

For Eugene Rostow, Philip Chase Bobbitt

Faculty Scholarship

The two-handed saw is a foresters’ instrument that two men use, one at each end, sawing in reciprocating rhythm. The blade of the best two-handed saws balances a sharpened stiffness with a shimmering flexion; its use requires individual strength and skill at cooperation. Because Gene Rostow too combined these opposing qualities – indeed had them in abundance – it is especially noteworthy that one day, using such a saw as a young man in New England, he severely injured his back, keeping him out of active service in World War II and causing recurrent difficulties throughout his gallant life.

Was he unyielding ...


The Concept Of Authorship In Comparative Copyright Law, Jane C. Ginsburg Jan 2003

The Concept Of Authorship In Comparative Copyright Law, Jane C. Ginsburg

Faculty Scholarship

In contemporary debates over copyright, the figure of the author is too-often absent. As a result, these discussions tend to lose sight of copyright's role in fostering creativity. I believe that refocussing discussion on authors – the constitutional subjects of copyright – should restore a proper perspective on copyright law, as a system designed to advance the public goal of expanding knowledge, by means of stimulating the efforts and imaginations of private creative actors. Copyright cannot be understood merely as a grudgingly tolerated way station on the road to the public domain. Nor does a view of copyright as a necessary ...


The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt Jan 2003

The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt

Faculty Scholarship

The turn of the twentieth century marked a new era of individualization in the field of criminal law. Drawing on the new science of positivist criminology, legal scholars called for diagnosis of the causes of delinquence and for imposition of individualized courses of remedial treatment specifically adapted to these individual diagnoses. "[M]odern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes," leading criminal law scholars declared. "Thus the great truth of the present and the future, for criminal science ...


From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt Jan 2003

From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt

Faculty Scholarship

Criminal law in the United States experienced radical change during the course of the twentieth century. The dawn of the century ushered in an era of individualization of punishment. Drawing on the new science of positive criminology, legal scholars called for diagnosis of the causes of delinquency and for imposition of individualized courses of remedial treatment specifically adapted to these diagnoses. States gradually developed indeterminate sentencing schemes that gave corrections administrators and parole boards wide discretion over treatment and release decisions, and by 1970 every state in the country and the federal government had adopted a system of indeterminate sentencing ...


Disasters First: Rethinking Environmental Law After September 11, Michael B. Gerrard Jan 2003

Disasters First: Rethinking Environmental Law After September 11, Michael B. Gerrard

Faculty Scholarship

Many environmental statutes were enacted, or at least spurred along, in direct response to disasters. The Federal Water Pollution Control Act of 1972 followed from the Santa Barbara Oil Spill; the Emergency Planning and Community Right-to-Know Act (EPCRA) resulted from the chemical gas disaster in Bhopal, India; the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was sparked by the Love Canal incident; and the Oil Pollution Acte was a reaction to the Exxon Valdez oil spill.

The terrorist attacks of September 11, 2001 have led to the Homeland Security Act and to several other enactments. The collapse of the ...


Blaming Youth, Elizabeth S. Scott, Laurence Steinberg Jan 2003

Blaming Youth, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

In March of 2001, a fourteen-year-old Florida boy named Lionel Tate was sentenced to life in prison without parole for killing six-year-old Tiffany Eunick during a wrestling match that took place when Lionel was twelve years old. Lionel was convicted of first degree murder on the ground that the killing was the result of aggravated child abuse, a crime that contemplates injury of a child by an adult caretaker. His conviction and sentence have prompted much debate and discussion – about his case and, more generally, about the criminal punishment of young offenders. Although the verdict and Lionel's sentence received ...


Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott Jan 2003

Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be. These gaps are unsurprising given the traditional definition of contract as embracing all promises that the law will enforce. Even a theory of contract law that focuses only on the enforcement of bargains must still consider the entire continuum from standard form contracts between firms and consumers to commercial contracts among businesses. No descriptive theory has yet explained a law of contract that comprehends such a broad domain. Normative theories that are grounded in a single ...


A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel Jan 2003

A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel

Faculty Scholarship

The American public school system is in the midst of a vast and promising reform. The core architectural principle of the emergent system is the grant by higher-level authorities – federal government, states, and school districts – to lower level ones of autonomy to pursue the broad goal of improving education. In return, the local entities – schools, districts, and states – provide the higher ones with detailed information about their goals, how they intend to pursue them, and how their performance measures against their expectations. The core substantive commitment of the emergent system is the provision to all students, and particularly to racial ...


The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel Jan 2003

The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel

Faculty Scholarship

Despite many deficiencies, the No Child Left Behind Act ("NCLB" or "Act") extends to the federal level and diffuses to the states an innovative system of publicly monitored decentralization of school governance known as the "New Accountability." This Article argues that, given background changes in the understanding of effective classroom teaching, accountability systems of the type imposed by the NCLB can enable willing school districts to build the capacity for school-level reform upon which the ultimate improvement of public schooling depends. It claims further that activists can accelerate the reforms and ensure respect for the requirements of racial and economic ...


When Code Isn't Law, Tim Wu Jan 2003

When Code Isn't Law, Tim Wu

Faculty Scholarship

When the Supreme Court upheld extended copyright terms in Eldred v. Ascroft, many Internet activists called for renewed political action in the form of appeals to Congress or even a campaign to amend the Constitution. But others suggested a very different course: They argued that it would be wiser to forgo institutions controlled by the powers of the past, and to return instead to the keyboard to write the next generation of "lawbusting" code. In the words of one observer, "tech people are probably better off spending their energy writing code than being part of the political process" because "[t ...


Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon Jan 2003

Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon

Faculty Scholarship

Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Legal doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. Under current doctrine, the lawyer's responsibilities differ strongly depending on whether the representation is characterized as 'joint" representation of the organization 's constituents or "entity" representation. This Article argues that the choice between the two characterizations often has been arbitrary and that the underlying differences between them have been misunderstood. With respect to entity representation, it criticizes a prominent tendency ...


Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon Jan 2003

Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon

Faculty Scholarship

The Community Justice idea and its core institution – the Community Court – is an ambitious innovation intended to generate new solutions and practices. It thus inevitably calls for adaptation of the established roles associated with the court system, and especially the criminal justice system. It asks practitioners to learn new skills, to accept new conventions, and to participate in the elaboration of a rapidly evolving experiment.

It is thus not surprising that many lawyers are anxious about the system. It remains an interesting question, however, whether their anxiety represents something more than the discomfort that change and challenge typically bring to ...


Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon Jan 2003

Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon

Faculty Scholarship

Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.

The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the ...


Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer Jan 2003

Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer

Faculty Scholarship

The capital structures of venture capital-backed U.S. companies share a remarkable commonality: overwhelmingly, venture capitalists make their investments through convertible preferred stock. Not surprisingly, much of the academic literature on venture capital has sought to explain this peculiar pattern. Financial economists have developed models showing, for example, that convertible securities efficiently allocate control between the investor and entrepreneur,signal the entrepreneur's talent and motivation, and align the incentives of entrepreneurs and venture capitalists.

In this Article, we examine the influence of a more mundane factor on venture capital structure: tax law. Portfolio companies issue convertible preferred stock to ...


Beyond Congress: The Study Of State And Local Legislatures, Richard Briffault Jan 2003

Beyond Congress: The Study Of State And Local Legislatures, Richard Briffault

Faculty Scholarship

I'd like to thank the Journal of Legislation and Public Policy for inviting me back to N.Y.U. I am particularly grateful to have the opportunity to sit between and learn from Bill Eskridge and Beth Garrett, who have once again demonstrated in their comments today why they are leaders in this field. I understand now what it must have been like to be a student in a class with Eskridge as the professor and Garrett as a fellow student – can you imagine what an experience that must have been?

I am going to focus my remarks on ...


Reforming Campaign Finance Reform: A Review Of Voting With Dollars, Richard Briffault Jan 2003

Reforming Campaign Finance Reform: A Review Of Voting With Dollars, Richard Briffault

Faculty Scholarship

On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA") into law. The culmination of a six-year legislative and political struggle, BCRA works the most comprehensive change in federal campaign finance law in nearly three decades. BCRA addresses a broad range of issues, including soft money, issue-advocacy advertising, fundraising on federal property, campaign activities of foreign nationals, and penalties for violation of campaign finance laws. Enacted in the face of intense political opposition, BCRA, if it stands up in court, is a significant reform achievement.

Or is it? BCRA closely follows the main ...


The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel Jan 2003

The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel

Faculty Scholarship

We argue first that the new architecture of educational reform has emerged from the fusion of a top-down national movement for standards and bottom-up initiatives, some of the latter associated with Deweyan progressivism. A key feature of the reform architecture is its use of error-detection to compensate for design deficiencies. No one initially knows how to build a school system that enables poor and minority students to read and do mathematics at levels attained by rich white students. But following experimentation, error-detection and correction at the lowest levels to find out what works, higher level structures can be adjusted to ...


Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson Jan 2003

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few ...


Assessing Theories Of Global Governance: A Case Study Of International Antitrust Regulation, Anu Bradford Jan 2003

Assessing Theories Of Global Governance: A Case Study Of International Antitrust Regulation, Anu Bradford

Faculty Scholarship

An effective, legitimate model of global governance must strike a delicate balance between national sovereignty and international cooperation. As such, governance on an international level is a constantly evolving discourse among multiple actors whose respective roles and influence vary across time and policy realms. The participation of multiple actors in global governance is widely recognized, but there is considerable disagreement as to the appropriate distribution of power among these participants and the optimal pattern for their interaction. We may never be able to construct an ideal global governance model. But the attempt to create such a model by examining the ...


Reflections On The Life And Work Of Justice Byron R. White, Lance Liebman Jan 2003

Reflections On The Life And Work Of Justice Byron R. White, Lance Liebman

Faculty Scholarship

No abstract provided.


Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, Gerard E. Lynch Jan 2003

Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, Gerard E. Lynch

Faculty Scholarship

I was delighted to be invited to comment on Ronald Wright and Marc Miller's important and instructive article, The Screening/Bargaining Tradeoff. Those familiar with the authors' work, including their original and fascinating criminal procedure casebook, will be unsurprised by many of the article's virtues, including a focus on empirical examination of real-world practice and (perhaps a special case of that more general virtue) attention to practices at the state and local level, where most criminal law enforcement actually occurs. Wright and Miller develop some interesting insights into the potential for changes in plea bargaining practices that have ...


Local Institutions, Foreign Investment And Alternative Strategies Of Development: Some Views From Practice, Tamara Lothian, Katharina Pistor Jan 2003

Local Institutions, Foreign Investment And Alternative Strategies Of Development: Some Views From Practice, Tamara Lothian, Katharina Pistor

Faculty Scholarship

This Essay summarizes the major insights gained from a panel discussion with legal practitioners about the relevance of local institutions to foreign direct investors. The Essay offers a critique of policy conclusions drawn from empirical studies that suggest a positive correlation between legal institutions and foreign investment flows. It points out that the data used in these studies are far too general to allow policy conclusions and that neither the data nor the policy conclusions are sufficiently attuned to the challenges or opportunities that foreign direct investment projects face on the ground. According to the results of the panel discussion ...


The Case For Auctioning Countermeasures In The Wto, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger Jan 2003

The Case For Auctioning Countermeasures In The Wto, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

A prominent problem with the WTO dispute settlement procedures is the practical difficulty faced by small and developing countries in finding the capacity to effectively retaliate against trading partners that are in violation of their WTO commitments. In light of this problem, Mexico has proposed that retaliation rights be made tradeable.' We offer a first formal analysis of the possibility that retaliation rights within the WTO system be allocated through auctions. We show that the auctions exhibit externalities among bidders, and we characterize equilibrium bidder behavior under alternative auction formats. A key feature of auction format is whether the country ...


Professional Identity: Comment On Simon, Daniel C. Richman Jan 2003

Professional Identity: Comment On Simon, Daniel C. Richman

Faculty Scholarship

Lord Brougham – the icon of zealous advocacy, who saw it as his duty to “save [his royal] client by all means and expedients and at all hazards and costs to other persons and, among them, to himself” – would not last long in a Cuban criminal court today. The question is, how comfortable would he be in a drug treatment court? Could he do his job? How well would he do it? Would he want to? And should we care if he couldn't and wouldn't?

These are all questions raised by William Simon's trenchant exploration of the challenges ...