Law Commons^™

"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 …

A One Term Tort Reform Tale: Victimizing The Vulnerable, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

During its spring 1997 term, Congress passed the Volunteer Protection Act and considered but did not pass the Biomaterials Access Assurance Act of 1997. The Volunteer Protection Act provides a wide range of tort immunities to volunteers working for charitable organizations. The Biomaterials Access Assurance Act would have provided tort immunity to biomaterials producers. In this Article, the author examines the origins and possible implications of both these tort reform proposals from a class-based perspective and within the broader context of the ongoing tort reform debate. The author concludes that both of these proposals ultimately would harm individuals in vulnerable …

Feminist Theory And Feminist Method: Transforming The Experience Of The Classroom, Ann Shalleck

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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 …

Our Administrative System Of Criminal Justice, Gerard E. Lynch

Faculty Scholarship

Bill Tendy was already a legend among federal prosecutors when I first served as an Assistant United States Attorney for the Southern District of New York in the early 1980s. To us youngsters, Bill even then seemed a survivor from another era, when prosecutors really did resemble the tough-talking Hollywood DAs played by actors like Brian Donleavy – while we felt more like insecure young lawyers who should be played by Michael J. Fox or Calista Flockhart.

Partly, of course, this was just a function of age and experience; hard as it was to imagine, there must have been a …

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 …

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 …

High-Level, "Tenured" Lawyers, Thomas W. Merrill

Faculty Scholarship

Government lawyers can be broadly categorized as either political or civil service appointees. The political appointees constitute a thin layer at or near the top of the hierarchy of government lawyers. They include, most prominently, presidential appointees – "Officers of the United States" who must be nominated and confirmed by the Senate prior to their appointment. They also include a variety of lesser lawyers who are exempt from most of the civil service laws. Such exempt "inferior Officers" include, for example, the lawyers in the White House Counsel's office and so-called "Schedule C" lawyers who hold positions "of a confidential …

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 …

Exploring The Concept Of Post-Tenure Review In Law Schools, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Introduction: Faculty in American law schools and universities often view the award of tenure as an inviolate guarantee of job security.' From this perspective, any attempt to monitor the level and quality of a tenured professor's work infringes on academic freedom. Recently, however, academics have argued that shielding the performance of tenured faculty from serious review potentially may be a disservice to the academic institution. Critics complain that schools sacrifice professional accountability when deficient performance goes undetected and uncorrected.

On Long-Haul Lawyering, Susan Bennett

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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 …

Judicial Review Of Discount Rates Used In Regulatory Cost-Benefit Analysis, Edward R. Morrison

Faculty Scholarship

Executive orders, statutes, and precedent increasingly require cost-benefit analysis of regulations. Presidential executive orders have long required executive agencies to submit regulatory impact analyses to the Office of Management and Budget ("OMB") before issuing regulations, and recent federal legislation exhibits a trend toward mandatory cost-benefit analysis. For example, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, and the recent Safe Drinking Water Act Amendments require the Environmental Protection Agency to balance costs and benefits in regulating chemicals and pesticides. In 1995, Congress passed the Unfunded Mandates Act, requiring cost-benefit analysis of all significant federal regulations that …

The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller

Faculty Scholarship

Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse – a tragedy of the commons. Depleted fisheries …

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, …

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 …

Creating International Space For Taiwan: The Law And Politics Of Recognition, Paul Williams

Scholarly Articles in Law Reviews & Journals

Is Taiwan an entity with an international legal personality entitling it to a certain degree of international space? Or is it an integral political unit of China? The task of this presentation is to analyze the potential legal and political reaction to an attempt by Taiwan to move its current status over the cusp and into the realm of independence, or an alternative attempt by China to back down Taiwan into a one China with the one system policy.

The Founding Of The Washington College Of Law: The First Law School Established By Women For Women, Mary Clark

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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 …

Wielding The Double-Edge Sword: Charles Hamilton Houston And Judicial Activism In The Age Of Legal Realism, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

A new progressive movement in the law profoundly affected the American judicial climate of the 1930s and 1940s. The jurisprudence of American Legal Realism, which sprang from the progressive American sociological jurisprudence, boasted the adherence of some of America's most influential legal minds. Legal Realism, which complemented the New Deal reform legislation emerging in the 1930s, advocated judicial deference to legislative and administrative channels on matters of social and economic policy. Judicial activism, which had been used as a tool for the protection of economic rights since the late nineteenth century, was seen as inimical to progressive social reform and, …

Identifying The Firm-Specific Cost Pass-Through Rate, Jonathan Baker, Orley Ashenfelter, David Ashmore, Signe-Mary Mckernan

Scholarly Articles in Law Reviews & Journals

A merger that permits the combined company to reduce the marginal cost of producing a product creates an incentive for it to lower price. Accordingly, the rate at which cost changes are passed through to prices (along with an estimate of the magnitude of cost reductions that would result from merger) matters to the evaluation of the likely competitive effects of an acquisition. In this paper, we describe our empirical methodology for estimating the cost pass-through rate facing an individual firm, and for distinguishing that rate from the rate at which a firm passes through cost changes common to all …

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Task Force Statement Of The Twentieth Century Fund's Task Force On Apprehending Indicted War Criminals: Meeting The Obligations Of Justice, Paul Williams

Scholarly Articles in Law Reviews & Journals

No abstract provided.

News Media Coverage Of The United States Supreme Court, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

On Long-Haul Lawyering, Susan Bennett

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Redirecting The Debate Over Trafficking In Women: Definitions, Paradigms, And Contexts, Janie Chuang

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Bright Lines Or Blurry Labels, Walter Effross

Scholarly Articles in Law Reviews & Journals

Introduction:The emerging mathematical discipline of "fuzzy logic" has recently sparked dramatic efficiencies in modern industrial processes while inviting comparisons to the age-old philosophies of Taoism and Zen. As concepts of "fuzziness" have filtered from technical journals to popular science magazines to trade paperbacks, they have begun to appear in legal commentaries as well.

Withdrawal Of The Reference: Rights, Rules, And Remedies For Unwelcomed Web-Linking, Walter Effross

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Legal Architecture Of Virtual Stores, Walter Effross

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: A major "selling point" of the World Wide Web is its ability to offer a "virtual storefront" to anyone, from an individual to a multinational corporation, with a product to market. Commercially available software packages enable even those computer users who are not versed in the intricacies of programming to create customized Web sites quickly, and at a relatively low cost. The swift development of this technology and a cultural shift towards encouraging on-line commerce have led to dramatic growth in the demographics and dollar amounts of the on-line marketplace, which in turn offers a challenging new context for …