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Articles 7531 - 7560 of 7780
Full-Text Articles in Law
Frustration, Richard F. Devlin Frsc
Frustration, Richard F. Devlin Frsc
Articles, Book Chapters, & Popular Press
As noted elsewhere in this book, "sanctity of contract" has been identified as one of the cornerstones of the classical model of contracts. However, as the previous chapter on mistake indicated, in certain limited situations parties may be excused from their contractual obligations. Frustration provides another example of an excuse from performance obligations. Whereas mistake deals with inaccurate assumptions or lack of knowledge about past or existing circumstances, frustration relates to inaccurate assumptions about future circumstances. Sometimes it is not clear whether a mistake or a frustration analysis is appropriate.
Randolph W. Thrower Lecture: Your Tax Dollars At Work: Why U.S. Tax Law Needs To Be Changed, Michael J. Graetz
Randolph W. Thrower Lecture: Your Tax Dollars At Work: Why U.S. Tax Law Needs To Be Changed, Michael J. Graetz
Faculty Scholarship
I focus here on prospects for tax reform. Things are quiet, politically, on the tax reform front. The Republicans in 1999 are talking about an across-theboard tax cut less extensive than Ronald Reagan's tax cut of 1981. On February 1, 1999, President Clinton, in his budget proposals, offered thirty-eight "targeted" tax reduction proposals and seventy-four tax increase proposals. It took the Treasury Department 197 closely typed, single-spaced pages to describe the proposals. We do not appear to be on the verge of major tax simplification.
The Supreme Court, Sexual Citizenship And The Idea Of Progress, Kendall Thomas
The Supreme Court, Sexual Citizenship And The Idea Of Progress, Kendall Thomas
Faculty Scholarship
Is American Progressive Constitutionalism dead ... yet? I propose to seek the beginnings of an answer to this question in the pages of a recent decision by the United States Supreme Court. I do feel obliged to say this, not because I am committed to a court-centered adjudicative conception of American constitutionalism; to the contrary. But rather, because the decision on which I want to focus seems to me to offer a rich resource for critical reflection on the idea of self-government whose connections to Progressive Constitutionalism give us our topic this afternoon.
Environmental Harm In Developing Countries Caused By Subsidiaries Of Canadian Mining Corporations: The Interface Of Public And Private International Law, Sara Seck
Articles, Book Chapters, & Popular Press
This 1999 publication examines home state responsibility for transnational environmental harm from the perspective of both private and public international law, using Canadian mining internationally as a case study.
Lifetime Employment: Labor Peace And The Evolution Of Japanese Corporate Governance, Ronald J. Gilson, Mark J. Roe
Lifetime Employment: Labor Peace And The Evolution Of Japanese Corporate Governance, Ronald J. Gilson, Mark J. Roe
Faculty Scholarship
In Japan, large firms' relationships with their employees differ from those prevailing in large American firms. Large Japanese firms guarantee many employees lifetime employment, and the firms' boards consist of insider employees. Neither relationship is common in the United States.
Japanese lifetime employment is said to encourage firms and employees to invest in human capital. We examine the reported benefits of the firm's promise of lifetime employment, but conclude that it is no more than peripheral to human capital investments. Rather, the "dark" side of Japanese labor practice – constricting the external labor market – likely yielded the human capital …
How Seqra Cases Fared In 1998, Michael B. Gerrard
How Seqra Cases Fared In 1998, Michael B. Gerrard
Faculty Scholarship
In the annals of the State Environmental Quality Review Act (SEQRA), 1998 should be remembered as the year when developers throughout New York State became frustrated with what they perceived as irrational requirements or excessive delays in the SEQRA process, went to court for redress, and almost uniformly lost. There were 18 attempts at such relief and one highly mixed success.
Constitutional Constraints On Redistribution Through Class Power, Mark Barenberg
Constitutional Constraints On Redistribution Through Class Power, Mark Barenberg
Faculty Scholarship
My comments will not be so much a critique as an elaboration of the two papers, especially Professor Neuman's paper on United States (U.S.) law, since I am not an expert on German constitutional law. For those less familiar with U.S. law, my goal is to bring to light some additional elements of the U.S. constitutional tradition that impede the use of law to achieve economic equality-elements of U.S. constitutional law that reinforce the weak "general equality" principle of the Equal Protection Clause.2 I will use U.S. labor law as my vehicle for showing the variety of constitutional principles that …
Introduction To The Special Issue, George A. Bermann
Introduction To The Special Issue, George A. Bermann
Faculty Scholarship
The subject of this year's topical issue of the Columbia Journal of European Law promises to be topical for some time to come. Every model of European integration that has been competing for consideration-whether within the Union institutions or within the corridors of national power, or virtually anywhere for that matter presupposes a European identity of sorts. But just at the time that a "European" identity might hope to be developing in the midst of the "national" identities with which it was commonly contrasted, the identity "landscape" has itself been growing more complex. Forces of globalization, and more particularly the …
Teaching Reasoning, Vincent A. Blasi
Teaching Reasoning, Vincent A. Blasi
Faculty Scholarship
Reasoning skills of a certain sort are taught well in the traditional law school curriculum. No matter how good her previous education, the typical law student surely acquires an improved facility at testing propositions by considering hypothetical applications. Many students learn a lot about linguistic indeterminacy, unintended consequences, the allocation of decision-making responsibility, and how much turns on which questions are asked and how they are framed. It is a rare, indeed obtuse, person who completes a legal education still temperamentally inclined to refute unwelcome ideas when distinguishing them will do.
Where legal education falls short, I think, is with …
The Plenary Power Background Of Curtiss-Wright, Sarah H. Cleveland
The Plenary Power Background Of Curtiss-Wright, Sarah H. Cleveland
Faculty Scholarship
In his article The Transformation of the Constitutional Regime of Foreign Relations, Professor Ted White argues that the early twentieth century saw a major shift in constitutional understandings and expectations regarding the distribution of authority in foreign affairs. According to White, until that era the foreign affairs power, like all other powers under the Constitution, were considered subject to a formalistic, essentialist world view in which powers were distributed by the text of the Constitution according to clear principles of federalism and separation of powers. Congress and the President could only exercise powers in this area that had been dedicated …
Impeachment As A Technique Of Parliamentary Control Over Foreign Affairs In A Presidential System, Lori Fisler Damrosch
Impeachment As A Technique Of Parliamentary Control Over Foreign Affairs In A Presidential System, Lori Fisler Damrosch
Faculty Scholarship
The central inquiry for this essay is the proper use of the impeachment tool in foreign relations contexts, including war powers. In Part I, the essay begins with a brief review of British impeachment practice (limited to war and foreign policy concerns) known to the Founding generation and reflected in certain fundamental texts of the Founding; this treatment does not betoken any originalist orientation on my part (au contraire) but will set the context for later developments. Part II then turns to the travails of President Andrew Johnson as seen through the eyes of Walter Bagehot, the author of …
Retaining Mandatory Securities Disclosure: Why Issuer Choice Is Not Investor Empowerment, Merritt B. Fox
Retaining Mandatory Securities Disclosure: Why Issuer Choice Is Not Investor Empowerment, Merritt B. Fox
Faculty Scholarship
This Article advances the reopened debate over mandatory disclosure in two ways. First, it demonstrates that the proponents of issuer choice have not effectively countered the arguments that have formed the basis of the prevailing consensus for retaining mandatory disclosure. While this consensus was formed when the alternative to mandatory disclosure was total abandonment of regulation, the proponents of issuer choice have not shown how the arguments that form the basis of this consensus have any less force when applied to the new alternative of issuer choice. Nor have the proponents offered persuasive, more general rebuttals to these arguments. Second, …
Becoming A Citizen: Reconstruction Era Regulation Of African American Marriages, Katherine M. Franke
Becoming A Citizen: Reconstruction Era Regulation Of African American Marriages, Katherine M. Franke
Faculty Scholarship
While many Black people regarded slavery as a form of social death, some nineteenth-century white policy-makers extolled the virtues of slavery as a tool to uplift the characters of Africans in America: "[Slavery in America] has been the lever by which five million human beings have been elevated from the degraded and benighted condition of savage life ... to a knowledge of their responsibilities to God and their relations to society," observed a Kentucky Congressman in 1860. These sentiments were echoed by abolitionist northern officers not three years later when the institution of marriage was lauded for its civilizing effect …
Copyright And Intermediate Users' Rights, Jane C. Ginsburg
Copyright And Intermediate Users' Rights, Jane C. Ginsburg
Faculty Scholarship
The impending "Digital Millennium" has amplified the assertion of users' rights in U.S. copyright law. Copyright has been reimagined as a "law of users' rights" whose acolytes caution copyright owners not to stand as piggish impediments to the progress of learning and culture in the Digital Age. Proponents advance a variety of arguments in support of a user rights construct of copyright law, from the historical to the philosophical to the pragmatic. I propose to address some of these. But first it is important to specify what I mean by "users' rights" in U.S. copyright law today.
User rights in …
Copyright Legislation For The "Digital Millennium", Jane C. Ginsburg
Copyright Legislation For The "Digital Millennium", Jane C. Ginsburg
Faculty Scholarship
In October 1998, Congress passed two major copyright bills, the "Digital Millennium Copyright Act" [DMCA], and the "Sonny Bono Copyright Term Extension Act." Moreover, the Senate ratified U.S. accession to the WIPO Copyright and Performances and Phonograms Treaties. The DMCA implements the obligations set forth in articles 11 and 12 of the WIPO Copyright Treaty [WCT] (and articles 18 and 19 of the WIPO Performances and Phonograms Treaty [WPPTI) to protect technological measures against circumvention, and to protect "copyright management information" against removal or alteration that facilitates infringement. The DMCA also includes a chapter on the liability of online service …
The Cyberian Captivity Of Copyright: Territoriality And Authors' Rights In A Networked World, Jane C. Ginsburg
The Cyberian Captivity Of Copyright: Territoriality And Authors' Rights In A Networked World, Jane C. Ginsburg
Faculty Scholarship
Let me start with two items of received wisdom: 1) Copyright is territorially-based; 2) Cyberspace is not. But copyrighted works circulate in cyberspace. What does that mean for their protection? I have not labeled this essay "The Cyberian Captivity of Copyright," just because the title is alliterative and fittingly portentious for an inaugural lecture. Rather, like the "Babylonian Captivity" of the papacy in Avignon that the title recalls, it suggests a displacement of an international institution. This need not mean, however, that the displacement is a Bad Thing - after all, the French probably have a more favorable view of …
Pathways To Corporate Convergence? Two Steps On The Road To Shareholder Capitalism In Germany, Jeffrey N. Gordon
Pathways To Corporate Convergence? Two Steps On The Road To Shareholder Capitalism In Germany, Jeffrey N. Gordon
Faculty Scholarship
One of the most interesting current debates in corporate law is whether worldwide corporate governance will ultimately converge on a single model in light of the increasing globalization of capital markets, and if so, whether it will be an Anglo-American model whose features are shaped by the shareholder primacy norm. Convergence skeptics have focused on the embeddedness of governance systems in national political structures that tend to protect both entrenched insider interests and non-shareholder constituencies against the incursions of Anglo-American governance agendas. Convergence optimists have focused on the evolutionary pressures of competitive international capital markets and on the tendency of …
Progressive Constitutionalism: Conceptions Of Interpretation And The Religion Clauses, Kent Greenawalt
Progressive Constitutionalism: Conceptions Of Interpretation And The Religion Clauses, Kent Greenawalt
Faculty Scholarship
In this paper, I concentrate on the narrower, more typical topic of judicial interpretation. At least in regard to the religion clauses, this may be warranted because any progressive constitution would probably include something similar to the Free Exercise and Establishment Clauses, and these would be judicially enforceable to some degree.
The first part of this essay explores relations between progressive values and interpretive approaches. When I asked myself how a judge, committed to progressive values, would interpret the Federal Constitution, I was troubled by whether a progressive approach would be activist or restrained in relation to legislative authority. I …
Diverse Perspectives And The Religion Clauses: An Examination Of Justifications And Qualifying Beliefs, Kent Greenawalt
Diverse Perspectives And The Religion Clauses: An Examination Of Justifications And Qualifying Beliefs, Kent Greenawalt
Faculty Scholarship
Some of the most complex questions about constitutional provisions governing religion concern the status of various kinds of convictions. Put most simply, how do undoubted religious convictions compare with convictions that appear to have little to do with religion, with convictions that derive from negative answers to religious questions, and with convictions that seem to be on some borderline of what may count as religion? In this Essay, I focus on two kinds of questions about this range of convictions.
Part I of the Essay explores justifications underlying the religion clauses of federal and state constitutions. It asks how explicitly …
Police Reform And The Department Of Justice: An Essay On Accountability, Debra A. Livingston
Police Reform And The Department Of Justice: An Essay On Accountability, Debra A. Livingston
Faculty Scholarship
In 1994, Congress promulgated a significant piece of legislation that may prove to have an extremely important impact on the operation of local police departments. Section 14141 of Title 42, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, prohibits governmental authorities or those acting on their behalf from engaging in "a pattern or practice of conduct by law enforcement officials" that deprives persons of "rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." Whenever the Attorney General has reasonable cause to believe that a violation has occurred, …
Who's In Control? The Courts, The Legislature And The Public In Colorado's School Finance Debate, Christina D. Ponsa-Kraus, Drew Dunphy
Who's In Control? The Courts, The Legislature And The Public In Colorado's School Finance Debate, Christina D. Ponsa-Kraus, Drew Dunphy
Faculty Scholarship
Colorado's school finance story touches on a number of themes familiar to students of school finance litigation: a struggle between those supporting greater resources and those favoring lower taxes; a shift in focus from equity to adequacy; and the difficulty of fostering an informed, widespread dialogue on school finance given the complexity of the funding system. At the same time, certain factors particular to Colorado – a seeming conflict in the state constitution, a number of strict constitutional amendments, and an unusually strong tradition of local control – have dramatically shaped the state's reform process. With a pending lawsuit seeking …
Legal Aid And Public Interest Law In China, Benjamin L. Liebman
Legal Aid And Public Interest Law In China, Benjamin L. Liebman
Faculty Scholarship
This article describes the evolution of legal aid and public interest law in China and examines its implications for the legal profession and the law in the context of four intertwined developments: first, China's efforts to establish a nationwide system of government-run legal aid centers; second, China's attempt to expand the availability and improve the quality of legal representation for indigent criminal defendants; third, China's bid to force the legal profession to serve poor clients via mandatory pro bono requirements for lawyers; fourth, the development of non-governmental legal aid centers and the expanding incentives for profit-oriented lawyers to take on …
Moral Icons: A Comment On Steven Lubet's Reconstructing Atticus Finch, William H. Simon
Moral Icons: A Comment On Steven Lubet's Reconstructing Atticus Finch, William H. Simon
Faculty Scholarship
Atticus Finch's conduct would have been justified by the bar's conventional norms even if he had known Tom Robinson to be guilty. That fact, however, is not the source of the admiration for him that To Kill a Mockingbird has induced in so many readers. That admiration depends on the clear premise of the novel that Finch plausibly believes that Tom Robinson is innocent. Thus, the bar's invocation of Finch as a sympathetic illustration of its norms is misleading. The ethics of the novel are quite different from those of the bar.
Dispute Settlement Procedures And Mechanisms, Petros C. Mavroidis
Dispute Settlement Procedures And Mechanisms, Petros C. Mavroidis
Faculty Scholarship
The role that the World Trade Organization (WTO) plays in the settlement of United States-Japan trade disputes is, but should not be, U.S. and Japan-specific. The WTO is a multilateral forum and this aspect of its character must be maintained for the WTO to acquire credibility in the settlement of trade disputes. Trade disputes, if at all, should be exceptional not because of the parties involved, but because of their subject matter. Nothing indicates that the U.S.-Japan trade disputes are subject matter-specific. In fact, the opposite is true: there is ample evidence demonstrating that disputes over the same issues among …
The Political Economy Of Recognition: Affirmative Action Discourse And Constitutional Equality In Germany And The U.S.A., Kendall Thomas
The Political Economy Of Recognition: Affirmative Action Discourse And Constitutional Equality In Germany And The U.S.A., Kendall Thomas
Faculty Scholarship
This paper undertakes a comparative exploration of affirmative action discourse in German and American constitutional equality law. The first task for such a project is to acknowledge an important threshold dilemma. The difficulty in question derives not so much from dissimilarities between the technical legal structures of German and American affirmative action policy. The problem stems rather from the different social grounds and groupings on which those legal structures have been erected. Because German "positive action"' applies only to women, gender and its cultural meanings have constituted the paradigmatic subject of the policy. The legal discussion of positive action has …
Sanctions Against Perpetrators Of Terrorism, Lori Fisler Damrosch
Sanctions Against Perpetrators Of Terrorism, Lori Fisler Damrosch
Faculty Scholarship
Since the title for this panel is "Presidential Uses of Force and Other Sanction Strategies," I will begin with "other sanction strategies" – that is, other than use of force. I would rather not be cast in the role of the dove on the panel to comment on illegitimacy of uses of force (presidential or otherwise), because I do not want to rule out or necessarily oppose presidential uses of force for counter-terrorism purposes in all circumstances. Indeed, I find myself in considerable agreement with Professor Reisman's lecture. Although I have disagreed with some of his writings and positions on …
Law And The Ideal Citizen, Lee C. Bollinger
Law And The Ideal Citizen, Lee C. Bollinger
Faculty Scholarship
The theme identified for this lecture series is the subject of responsibility. I assume Washington and Lee has selected that topic out of a sense that it has not received sufficient attention, as compared, for example, to the subject of "rights." I select "rights" as the counter-example because we often hear of the two in tandem – "rights and responsibilities." As such, the concept of responsibility connotes a sense of obligation as to what is due from us to others and to the community. It is, in that sense, easier to be in favor of rights than it is of …
The Nuttiness Of Divorce, Thomas W. Merrill
The Nuttiness Of Divorce, Thomas W. Merrill
Faculty Scholarship
The erratic, emotional "nuttiness" of divorce is predictable. Rest assured, however, you are not crazy. You are merely responding to the temporary emotional upheaval in your life. To help you better understand what you are experiencing, we have put together a brief explanation of the psychological stages or phases that accompany the legal process of divorce.
Beyond Backyard Environmentalism, Archon Fung, Charles F. Sabel, Bradley C. Karkkainen
Beyond Backyard Environmentalism, Archon Fung, Charles F. Sabel, Bradley C. Karkkainen
Faculty Scholarship
From California habitats to Massachusetts toxics, the United States is in the midst of a fundamental reorientation of its environmental regulation, one that is as improbable as it is unremarked Minimally, the new forms of regulation promise to improve the quality of our environment At a maximum, they suggest a novel form of democracy that combines the virtues oflocalism and decentraliz.ation with the discipline of national coordination.
In substance and spirit, this new approach to regulation grows out of the tradition of backyard environmentalism. For two decades, residents of Woburn, Love Canal, and countless other communities across the country have …
Introduction: Looking Ahead In Canadian Law School Education, Joost Blom
Introduction: Looking Ahead In Canadian Law School Education, Joost Blom
All Faculty Publications
The author [who was then Dean] speculates on the coming decade or two in Canadian legal education.