Law Commons^™

Hanging With The Wrong Crowd: Of Gangs, Terrorists, And The Right Of Association, David Cole

Georgetown Law Faculty Publications and Other Works

Part I will sketch the current contours of the right of association, a right limited to "expressive" and "intimate" association, and will describe the government's attempts to extend this categorical approach by limiting associational protection still further to membership per se. Part II will argue that the Court's limitation of associational rights to expressive and intimate associations and the government's attempt to distinguish association from conduct are unworkable, inconsistent with the Court's own precedents, and fail to reflect the normative reasons for protecting the right of association. Part III will offer an alternative framework for addressing the right of association, …

Cultural Relativism And Cultural Imperialism In Human Rights Law, Guyora Binder

Journal Articles

The "Universalism-Cultural Relativism" debate proceeds on the assumption that international human rights law requires the identification of fundamental principles of justice that transcend culture, society, and politics. Thus, the debate presumes that to assert the cultural relativity of justice is to deny the legitimacy of international human rights law. This comment challenges this presumed linkage between international human rights law and universally valid criteria of justice. Human rights standards are obviously culturally relative, and human rights law is obviously a Western institution. But so are the kind of states that human rights law sets out to restrain. The nation-state ideal …

Why Did Voters Reject Michigan's Physician-Assisted Suicide Initiative?, Yale Kamisar

Articles

In November 1997, when Oregon voters reaffirmed their support for doctor-assisted suicide, some commentators called it a turning point for the "right to die" movement. But the lopsided defeat of a similar proposal in Michigan is a better barometer: in general, assisted suicide continues to fare badly in the political arena.

The Three Threats To Miranda, Yale Kamisar

Articles

Miranda v. Arizona (1966) was the centerpiece of the Warren Court's "revolution" in American criminal procedure. Moreover, as Professor Stephen Schulhofer of the University of Chicago Law School has recently noted, a numbir of the Miranda safeguards "have now become entrenched in the interrogation procedures of many countries around the world." But Miranda is in serious trouble at home.

America's Apostasy, James C. Hathaway

Articles

It has often struck me that the prominence of the Restatement of the Foreign Relations Law of the United States epitomizes the plight of international law in this country. The title of this standard reference on international law does not even refer to international law, but instead to foreign relations law. That is, it is meant to set out the standards by which we may legitimately judge the conduct of others. The clear, if unintended, message is that the Restatement is not really a codification of laws that bind us. And indeed, it is explicitly not just a codification, but …

Optimal Timing And Legal Decisionmaking: The Case Of The Liquidation Decision In Bankruptcy, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Until the firm is sold or a plan of reorganization is confirmed, Chapter 11 entrusts a judge with the decision of whether to keep a firm as a going concern or to shut it down. The judge revisits this liquidation decision multiple times. The key is to make the correct decision at the optimal time. This paper models this decision as the exercise of a real option and shows that it depends critically on particular types of information about the firm and its industry. Liquidations take place too soon if we merely compare the liquidation value of the assets with …

1998 Presidential Address—Making Connections: Law And Society Researchers And Their Subjects, David M. Engel

Journal Articles

This essay explores the theme of the 1998 annual meeting of the Law and Society Association: "Making Connections across Disciplines, Theories, and Methods," focusing in particular on the connections between researcher and subject and between researcher and researcher. The essay discusses three recent articles, by Joseph Sanders and V. Lee Hamilton, by Barbara Yngvesson, and by Margaret Montoya. These articles illustrate recent creative efforts by law and society researchers to forge new kinds of connections to their subjects. The articles also illustrate fundamentally different conceptions of the role of the researcher and of the methodologies on which sociolegal studies might …

Ingos As Political Actors, Makau Mutua

Journal Articles

No abstract provided.

The Cutting Edge Of Poster Law, Michael A. Heller

Articles

Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

Living With The Death Penalty, Samuel R. Gross

Articles

The debate over the death penalty in the United States - such as it is - is framed in terms of criminal justice policy. The issues are the same ones we consider when the question is the length of prison sentence for a drug crime: Does the defendant deserve the penalty? Is it cost effective by comparison to other available sanctions? Will it deter others from committing the crimes for which he was convicted? Can we impose this punishment fairly? Can we make sure that innocent people are not condemned?

Sincere And Strategic Voting Norms On Multimember Courts, Evan H. Caminker

Articles

In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment.' In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court.

Application-Centered Internet Analysis, Tim Wu

Faculty Scholarship

There is a now-standard debate about law and the Internet. One side asserts that the Internet is so new and different that it calls for new legal approaches, even its own sovereign law. The other side argues that, although it is a new technology, the Internet nonetheless presents familiar legal problems. It is a battle of analogies: One side refers to Cyberspace as a place, while the other essentially equates the Internet and the telephone.

In my view, these two positions are both wrong and right: wrong in their characterization of the Internet as a whole, yet potentially right about …

Tax Consequences Of Assigning Life Insurance - Time For Another Look, Douglas A. Kahn, Lawrence W. Waggoner

Articles

The Taxpayer Relief Act of 1997 furnishes the courts and the Internal Revenue Service an opportunity to close certain loopholes in the federal tax consequences of assigning life insurance. About twenty years ago, we published an article arguing that the tax consequences of assigning life insurance affords taxpayers unwarranted opportunities for tax avoidance. Since then, developments in the case law and Internal Revenue Service rulings have broadened the loopholes. In the update of our article, we show how the new tax law supports our original position.

Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow

Articles

In The Shape of the River, presidents Bowen and Bok pronounce the race-sensitive admission policies adopted by selective undergraduate schools a resounding success. The evidence they adduce in support of that conclusion primarily concerns the performance of African-American students in and after college. But not all African-American students in those institutions were admitted in consequence of minority preference policies. Some, perhaps many, would have been admitted under race-neutral policies. I argued at several points in my review that since these students might be expected to be academically more successful than those admitted because of their race, the evidence on which …

Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki

Articles

In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …

. . . And The Invention Of The Future Tense, John W. Reed

Articles

This is the last session of the last meeting of the International Society of Barristers in the 1900s. Though the Third Millennium technically does not begin until 2001, the turn of the "odometer" from 1999 to 2000 leads us all to think of this as the end of a century and of a millennium. The pivotal date is yet ten nonths away, but the pundits are already issuing their lists, both profound and trivial-the greatest inventions, the best books, the worst natural catastrophes, the trial or tile century (of which there are at least a half dozen), the most influential …

Family Law And Gay And Lesbian Family Issues In The Twentieth Century, David L. Chambers, Nancy D. Polikoff

Articles

Over these thirty years, lesbians and gay men have increasingly challenged conventional definitions of marriage and the family. In this brief article, we tell the story of gay people and family law in the United States across this period. We divide our discussion into two sections: issues regarding the recognition of the same-sex couple relationship and issues regarding gay men and lesbians as parents. These issues overlap, of course, but since family law discussions commonly treat adult-adult issues of all sorts separately from parent-child issues, we believe it convenient and helpful to do so as well.

Near Misses, William I. Miller

Articles

I was recently invited to give a keynote address for a small academic conference whose advertised theme was "Near Misses, Contingencies, and Histories." I have a rough and ready understanding of the near miss, the same kind of understanding we have of most words and phrases that spill out effortlessly in normal conversation. I use it and have heard it used by myriad others to describe a certain style of disappointment and regret. It is a concept generally available to us all, but when coupled with contingencies and histories, as in the title of the conference with its vague suggestions …

Doing Well And Doing Good: The Careers Of Minority And White Graduates Of The University Of Michigan Law School, David L. Chambers, Richard O. Lempert, Terry K. Adams

Articles

Of the more than 1,000 law students attending the University of Michigan Law School in the spring of 1965, only one was African American. The Law School faculty, in response, decided to develop a program to attract more African American students. One element of this program was the authorization of a deliberately race-conscious admissiosn process. By the mid-1970s, at least 25 African American students were represented in each graduating class. By the late 1970s, Latino and Native American students were included in the program as well. Over the nearly three decades between 1970 and 1998, the admissions efforts and goals …

Sticks And Stones, Phoebe C. Ellsworth

Articles

I believe that research should be refuted by research. More and more of our scarce journal space is being taken up by attacks, rebuttals, and rebuttals to the rebuttals, often ending with a whimper of recognition that the adversaries were not so very far apart to begin with, and that the only way (if possible) to resolve the disagreement is through empirical research. Communication of scientific disagreement does not require a published article. Grant proposals and manuscripts submitted to refereed journals like this one are sent out to reviewers, who provide written evaluations that are communicated to the author. Papers …

Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro

Articles

The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia (No. 98-5881). "This case raises important questions about the meaning of the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the …

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 …

Narrative Relevance, Imagined Juries, And A Supreme Court Inspired Agenda For Jury Research, Richard O. Lempert

Articles

This paper has its roots in Old Chief v. United States, a case the Supreme Court of the United States decided in 1997. I will begin by describing this case; then comment on its implications for the Supreme Court's conception of the jury, and conclude by examining the agenda one may draw from it for empirical jury research. Old Chief arose when Johnny Lynn Old Chief was charged not only with assault with a dangerous weapon and using a firearm in the commission of a crime of violence, but also with violating a law that precludes convicted felons from possessing …

Required Disclosure And Corporate Governance, Merritt B. Fox

Faculty Scholarship

One of the most distinctive features of U.S. business law is the stringent requirements of ongoing disclosure imposed on issuers of publicly traded securities. This scheme usually has been justified as necessary to protect investors from making poor trading decisions as a result of being uninformed. Little scholarly attention, however, has been paid to the corporate governance effects of such required disclosure. In analyzing these effects, this article concludes that required disclosure can improve corporate governance in important ways. Indeed, improving corporate governance, not investor protection, provides the most persuasive justification for imposing on issuers the obligation to provide ongoing …

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 …

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 …

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 …

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 …

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 …

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.