Law Commons^™

On Public Reason, Kent Greenawalt

Faculty Scholarship

Since the publication of A Theory of Justice in 1971, John Rawls has refined, qualified, and enriched his political philosophy, responding generously and with patient analytical care to difficulties posed by critics. Political Liberalism embodies the major developments in Rawls's thought during those two decades. Rawls continues to be a strong defender of political liberalism, but in various respects his philosophical claims are more modest than those he offered in 1971, and the political life he recommends involves more accommodation to the diverse perspectives and ways of life one expects to find in liberal democracies. In most of the chapters …

Recovery For Economic Loss Following The Exxon Valdez Oil Spill, Victor P. Goldberg

Faculty Scholarship

The physical cleanup following one of the worst oil spills in history, that of the Exxon Valdez, is done. The legal cleanup, however, has barely begun. Over 100 law firms participating in over 200 suits in federal and state courts involving more than 30,000 claims are presently engaged in litigation. Fishermen, cannery workers, fishing lodges, tour boat operators, oil companies whose shipments were delayed, and even California motorists facing higher gasoline prices have filed claims against Exxon and its fellow defendants.

Most claimants face a formidable roadblock, the so-called Robins doctrine. Under Robins Dry Dock & Repair Co. v. Flint …

Brutality In Blue: Community, Authority, And The Elusive Promise Of Police Reform, Debra A. Livingston

Faculty Scholarship

In January 1994, President Clinton invited Kevin Jett, a thirtyone-year-old New York City police officer who walks a beat in the northwest Bronx, to attend the State of the Union Address. Jett stood for Congress's applause as the President called for the addition of 100,000 new community police officers to walk beats across the nation. The crime problem faced by Officer Jett and community police officers like him, the President said, has its roots "in the loss of values, the disappearance of work, and the breakdown of our families and communities." According to the Clinton administration, however, the police – …

Reply To Professor Brewbaker, Thomas W. Merrill

Faculty Scholarship

Professor Brewbaker's thoughtful article on physician price controls raises many issues, large and small. Some – such as the relative merits of the regulatory takings standard and the fair return standard – have been dealt with in my principal article and I will not revisit them here. I will instead address four arguments advanced by Professor Brewbaker that are not anticipated in my article: (1) that the Constitution should not apply to physician price controls because physicians can fend for themselves in the political process; (2) that applying the Takings Clause to physician price controls would be tantamount to reviving …

Echoes Of Tomorrow: The Road To Serfdom Revisited, Alex Kozinski, David M. Schizer

Faculty Scholarship

It is now half a century since Hayek published The Road to Serfdom. Much of our population was not even born when he wrote this terse, eloquent work – and a lot has happened since. A lifetime of conflict has raged over the ideas Hayek considered in his slender volume. Unimaginably destructive weapons have been aimed at the world's population centers, menacing the very survival of our species. Even under their shadow, we have seen revolutions reacting against the abuses Hayek identified. Millions have gained their freedom. Walls that seemed permanent came crashing down. We hope they stay down.

Our …

Federalism And Health Care Reform: Is Half A Loaf Really Worse Than None?, Richard Briffault

Faculty Scholarship

Health care reform dominates the domestic agenda of the Clinton Administration. Policy analysts, media pundits, and ordinary citizens are abuzz with the once-arcane terminology of health reform – "managed competition," "single-payer," "regional alliances," "global budgets" – as they ponder the merits and demerits of the leading reform alternatives. At the center of the public debate are questions concerning the role of government in constraining health care costs, maintaining quality, and widening access. But in our federal system there are two governments that can address most domestic problems – the national government and the states – and, although considerable ink has …

The Sentencing Guidelines As A Not-So-Model Penal Code, Gerard E. Lynch

Faculty Scholarship

We are accustomed to thinking about the criminal law, and the procedures for enforcing it, as divided into two separate stages. The first stage – the subject of penal codes and jury trials – concerns the definition of culpable conduct and the adjudication of guilt. The second stage – sentencing – concerns the consequences of conviction for the offender. Only rarely do we acknowledge that the conventional separation of these stages into compartments is highly misleading.

The articles in this Issue of FSR address, in one way or another, the extent to which the concerns of the substantive criminal law …

Two Social Movements, Thomas W. Merrill

Faculty Scholarship

Two social movements in the last fifty years have had a profound impact on our understanding of law and the role of the courts in our system of government. One is the civil rights movement. The demand for greater racial and gender equality and other civil rights has changed the face of the law in countless ways. For example, it has called into question – or at least required a fundamental revision in – the traditional understanding that the courts should interpret the Constitution and laws in accordance with their original meaning. Decisions such as Brown v. Board of Education …

Recent Developments In Refugee Protection, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Reinventing Competition, Nick Allard

Faculty Scholarship

No abstract provided.

Living With U.S. Regulations: Complying With The Rules And Avoiding Litigation, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Daniel C. Richman, Bruce A. Green

Faculty Scholarship

As a general rule, criminal defendants whose cases made it to the Supreme Court between 1967 and 1991 must have thought that, as long as Justice Thurgood Marshall occupied one of the nine seats, they had one vote for sure. And Justice Marshall rarely disappointed them – certainly not in cases of any broad constitutional significance. From his votes and opinions, particularly his dissents, many were quick to conclude that the Justice was another of those "bleeding heart liberals," hostile to the mission of law enforcement officers and ready to overlook the gravity of the crimes of which the defendants …

Shouting Down The Voice Of The People: Political Parties, Powerful Pac's And Concerns About Corruption, Clarisa Long

Faculty Scholarship

The Federal Election Campaign Act limits the amount of financial support that political parties may give to candidates for federal office. Clarisa Long argues that these restrictions violate political parties' First Amendment rights of speech and association. Because the flow of money in the political process is a proxy for speech, the First Amendment requires that political actors have access to at least one unrestricted avenue of communication. While individuals' and PACs' First Amendment rights are protected because they may make unrestricted independent expenditures, parties do not have this opportunity. Courts have failed to protect party speech, rationalizing that the …

Chief Justice Rehnquist, Pluralist Theory, And The Interpretation Of Statutes, Thomas W. Merrill

Faculty Scholarship

Chief Justice William H. Rehnquist is often viewed as the ultimate "political" judge. According to Mark Tushnet, for example, "[o]ne could account for perhaps ninety percent of Chief Justice Rehnquist' s bottom-line results by looking, not at anything in the United States Reports, but rather at the platforms of the Republican Party." Nowhere is this attitude more prevalent than with respect to issues of statutory interpretation. When I informed colleagues I was working on an article about Chief Justice Rehnquist's theory of statutory interpretation, the almost universal response was: "What theory?"

Contrary to the common view that Chief Justice Rehnquist …

Nationalism And Internationalism: The Wilsonian Legacy, Lori Fisler Damrosch

Faculty Scholarship

No twentieth-century leader has had greater influence on the parallel development of both nationalism and internationalism than Woodrow Wilson. Wilson gave expression to the nationalist aspirations of peoples around the world, through is endorsement of the principle of self-determination. He also initiated the first institution that had as its objective the organization of the international community to apply concerted power in support of universal values. My task is to examine one contemporary problem – intervention – in the light of some of the themes implicit in the Wilsonian legacy. Among these themes will be the establishment (and now the invigoration) …

The Sec And The Institutional Investor: A Half-Time Report, John C. Coffee Jr.

Faculty Scholarship

Nothing that the Securities and Exchange Commission ("SEC") has done in recent years has been as controversial or significant as its efforts to reform the proxy rules to permit greater communication among shareholders. Nothing that it has undertaken recently has also been left as incompletely or equivocally realized as these same efforts. That the SEC's efforts at facilitating shareholder communication have been controversial and significant is by now a commonplace observation. That they are incomplete and equivocal requires more explanation. Although the discovery that an agency is behaving inconsistently is hardly a revelation, more than politics appears to be at …

Property Rights: A View From The Trenches, Michael A. Heller

Faculty Scholarship

How do governments create – or in some countries recreate - basic property rights that citizens demand in the transition to a market economy? My first comment, quite briefly, is on the debate within this Symposium on the relationship between constitutional reforms and the emergence of new property regimes. Second, I will comment on the counterintuitive property rights regime that is emerging from the "big bang" – the post-1989 collapse of the old socialist legal order in Central and Eastern Europe and the former Soviet Union and its replacement with a new, market-oriented system of property rights.

Constitutional Limits On Physician Price Control, Thomas W. Merrill

Faculty Scholarship

Proposals for the reform of the nation's health care system have highlighted the issue of rising health care costs. Concern about rising costs, in tum, has led to talk of imposing price controls on health care providers. Economists and other experts have condemned price controls as a way to control rising health care costs. They argue that price controls do nothing to alleviate the underlying causes of inflation; instead, price controls merely postpone or redirect price increases, and in the process introduce allocational distortions and inefficiencies. This Article will not elaborate on the policy arguments for or against medical price …

Hail Britannia?: Institutional Investor Behavior Under Limited Regulation, John C. Coffee Jr., Bernard S. Black

Faculty Scholarship

A central puzzle in understanding the governance of large American public firms is why most institutional shareholders are passive. Why would they rather sell than fight? Until recently, the Berle-Means paradigm – the belief that separation of ownership and control naturally characterizes the modern corporation – reigned supreme. Shareholder passivity was seen as an inevitable result of the scale of modern industrial enterprise and of the collective action problems that face shareholders, each of whom owns only a small fraction of a large firm's shares.

A paradigm shift may be in the making, however. Rival hypotheses have recently been offered …

Violence Against Lesbians And Gay Men, Suzanne B. Goldberg, Bea Hanson

Faculty Scholarship

Faggot! Dyke! Pervert! Homo!" Just words? Or rhetoric that illuminates and fuels hatred of lesbians and gay men? How often are these words supplemented by the use of a bat, golf clubs, a hammer, a knife, a gun? Studies indicate that lesbians and gay men experience criminal victimization at rates significantly higher than other individuals and are the most frequent victims of bias crime.

Since lesbians and gay men live all across the country – in large cities, small towns, and rural areas – we can be targets of bias crime no matter where we live. From the attacks against …

Democracy And Domination In The Law Of Workplace Cooperation: From Bureaucratic To Flexible Production, Mark Barenberg

Faculty Scholarship

In May of 1993, President Clinton's Commission for the Future of Worker-Management Relations began its investigation of whether a major overhaul of United States labor law is necessary to encourage high-performance workplaces and labor-management cooperation. Even if its recommendations, due in November 1994, do not yield immediate congressional fruit, the Commission's work is likely to influence the study and politics of labor law reform for some time to come. The Commission is chaired by John Dunlop, the eminent labor-relations specialist and former Secretary of Labor. Its membership includes some of the nation's foremost academic and political proponents of far-reaching labor …

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Faculty Scholarship

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy Hertz

Faculty Scholarship

For the past two and one-half decades, the Supreme Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions. Under that rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible, the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt. The Supreme Court adopted this stringent standard in Chapman v. California to fulfill the federal …

Fear And Loathing In The Siting Of Hazardous And Radioactive Waste Facilities: A Comprehensive Approach To A Misperceived Crisis, Michael B. Gerrard

Faculty Scholarship

Few laws have failed so completely as the federal and state statutes designed to create new facilities for the disposal of hazardous and radioactive waste. Despite scores of siting attempts and the expenditure of several billion dollars since the mid-1970s, only one radioactive waste disposal facility, only one hazardous waste landfill (in the aptly named Last Chance, Colorado), and merely a handful of hazardous waste treatment and incineration units are operating on new sites in the United States today.

In 1981, a leading member of Congress, relying on data from the U.S. Environmental Protection Agency (EPA), predicted that by 1985 …

Same-Sex Marriage And Choice Of Law: If We Marry In Hawaii, Are We Still Married When We Get Home?, Barbara Cox

Faculty Scholarship

This Article explores the choice-of-law question of whether a same-sex couple, married in Hawaii after successful completion of the Baehr v. Lewin case, will have their marriage recognized by the state of their domicile upon their return from Hawaii. This Article first applauds the Baehr court's decision that prohibiting same-sex marriage is unconstitutional sex discrimination but then critiques its decision that the fundamental right to marry does not extend to same-sex couples.

The second Part considers the choice-of-law questions that will arise in cases litigating the validity of a couple's same-sex marriage upon their return to their domicile. It considers …

Categorical And Individualized Rights-Ordering On Federal Habeas Corpus, Daniel B. Yeager

Faculty Scholarship

This Article criticizes the Supreme Court's treatment of both individualized and categorical bases of relief on federal habeas corpus. Part I notes the Court's trend toward trimming the process that is due in criminal and prisoner litigation generally. This trend may explain the drop in process on habeas as well, but generally declining process cannot explain which rights, if any, should survive the decline. That would require our weighting, if not reconciling, accuracy and dignitary norms, which is the subject of Part II. In Part II, I examine Withrow v Williams, a case from the Court's 1992 Term, which, for …

Abolition Of China's Unequal Treaties And The Search For Regional Stability In Asia, 1919-1943, Charlotte Ku

Faculty Scholarship

Article Extract:

On July 1, 1997, China will resume control over Hong Kong - territory ceded to Britain in 1842 following China's defeat in the Opium War. The settlement of the Hong Kong question and the scheduled 1999 reversion of Macao from Portugal to China will effectively remove the last traces of the restrictions and encroachments placed on China by treaty for 150 years following the 1842 Treaty of Nanking.

The "unequal" treaty system began with the trading and residential privileges provided by the Treaty of Nanking. Britain was the premier trading power in China in the nineteenth century, and …

Environmental Commercial Law – Update On Seqra Lawsuits For 1994, Michael B. Gerrard

Faculty Scholarship

The Courts decided 57 cases1 in 1994 under the New York State Environmental Quality Review Act (SEQRA).2 As in prior years,3 this column presents a statistical summary of these cases and analyzes emerging trends. The 57 cases last year are about the same number as in 1993, but are down from the 70-75 seen annually in the early 1990s.

Free Speech And The Widening Gyre Of Fund-Raising: Why Campaign Spending Limits May Not Violate The First Amendment After All Symposium On Campaign Finance Reform, Vincent A. Blasi

Faculty Scholarship

Candidates for office spend too much of their time raising money. This is scarcely a controversial proposition. A major impetus for campaign finance reform is the frustration politicians now feel concerning how much time they must devote to courting potential donors, often by methods borrowed from the marketplace that can only be described as demeaning. The situation has gotten worse as electoral merchandising has grown ever more sophisticated and expensive.

Feminist Perspectives On The Ideological Impact Of Legal Education Upon The Profession, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.