Law Commons^™

Electing Delegates To A State Constitutional Convention: Some Legal And Policy Issues, Richard Briffault

Faculty Scholarship

On July 6, 2004, then-Governor James E. McGreevey signed into law a measure intended to address one of New Jersey's most contentious and explosive issues, the property tax. The law called for the creation of the Property Tax Convention Task Force (the "Task Force") to develop recommendations concerning the design of a state constitutional convention for revamping the existing property tax system. In addition to analyzing the scope, operation, and timing of a property tax convention, one of the principal tasks of the Task Force was to determine the method for the election of delegates. The New Jersey Constitution is …

Legal Status And Rights Of Undocumented Workers: Advisory Opinion Oc-18, Sarah H. Cleveland

Faculty Scholarship

In Advisory Opinion OC-18 of September 17, 2003, the Inter-American Court of Human Rights ruled that international principles of nondiscrimination prohibit discriminating against undocumented migrant workers in the terms and conditions of work. The Court acknowledged that governments have the sovereign right to deny employment to undocumented immigrants, but held that such workers are equally protected by human rights in the workplace once an employment relationship is initiated. In other words, states may not further their immigration policies by denying basic workplace protections to undocumented employees.

Introduction By George A. Bermann, George A. Bermann

Faculty Scholarship

The accountability of states and state actors on the international scene is on a forward march. The fora in which this development is playing itself out are multiple: national courts of the state actor, national courts of other states, international tribunals of a more or less public law variety, private international law tribunals, and all manner of hybrids.

Adversary Proceedings In Bankruptcy: A Sideshow, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Across a broad range of cases, the civil trial is disappearing. In the early 1960s, about twelve percent of federal civil cases were resolved by trial; by 2002 that percentage had fallen to less than two percent. This sharp decline raises important questions about the quality y and costs of decisionmaking in federal district courts. After all, these courts exist to resolve cases and controversies. It matters whether (and why) these disputes are resolved in or outside the courtroom.

Marc Galanter and Elizabeth Warren suggest that the same thing is happening in the bankruptcy courts and that there is likewise …

Property, Michael A. Heller

Faculty Scholarship

This article argues that despite its seeming disintegration, property is more vibrant than ever — it is a field that has focused on understanding the formal and informal institutions by which society channels decision-making for scarce resources. Many exciting recent innovations in property theory have arisen through dialogue between US and Commonwealth scholars and legislatures. The article is organized as follows. The first part explains the focus on analytic property theory, which is posed in distinction to a jurisprudential approach. The second part introduces the familiar division of ownership into a trilogy of ideal types: private, commons, and state. The …

Come Together? Producer Welfare, Consumer Welfare, And Wto Rules, Petros C. Mavroidis

Faculty Scholarship

This chapter explains why the dynamic of World Trade Organization (WTO) negotiations tends to lead to the progressive liberalization of market-access barriers promoting consumer welfare. As all agreements tend to be ‘incomplete’, it is a legitimate task of WTO judges to clarify progressively the WTO requirements of nondiscriminatory treatment of like goods and of like services. The additional requirements, in the WTO Agreements on Technical Barriers to Trade and on Sanitary and Phytosanitary Standards, to base restrictive measures on the ‘necessity principle’ and on ‘scientific evidence’, offer useful ‘double checks’ for judicial identification of protectionist measures. While the WTO rules …

The First Amendment's Original Sin, Lee C. Bollinger

Faculty Scholarship

Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of …

Understanding Dura, Merritt B. Fox

Faculty Scholarship

On April 19, 2005, the Supreme Court announced its unanimous opinion in Dura Pharmaceuticals, Inc. v. Broudo, concerning what a plaintiff must show to establish causation in a Rule 10b-5 fraud-on-the-market suit for damages. The opinion had been awaited with considerable anticipation, being described at the time of oral argument in the Financial Times, for example, as the "most important securities case in a decade." After the opinion was handed down, a representative of the plaintiffs' bar lauded it as a unanimous ruling protecting investors' ability to sue. A representative of the defendant's bar equally enthusiastically hailed it as …

Demystifying Causation In Fraud-On-The-Market Actions, Merritt B. Fox

Faculty Scholarship

An issuer makes a positive, material misstatement in violation of Rule 10b-5. What must an investor who purchases the issuer's shares on the open market show to establish causation in a "fraud-on-the-market" action for damages? After years of confusion in the lower courts, the Supreme Court recently granted certiorari on the question in the case of Broudo v. Dura Pharmaceuticals.

This Article argues that the confusion in the lower courts has arisen because they have analyzed the issue in terms of the twin concepts of "transaction causation" and "loss causation." They initially developed this bifurcated framework as a way …

Complexity Of School-Police Relationships Challenge Special Needs Doctrine, Joshua Gupta-Kagan

Faculty Scholarship

On November 5, 2003, concern regarding suspected drug activity led to a massive police search of Stratford High School in the Berkeley School District, north of Charleston, South Carolina. (See Police, School District Defend Drug Raid, available at http://www.cnn.com/2003/US/South/11/07/school.raid/index.html.) Fourteen police officers assumed strategic positions inside and outside the school. Accompanied by a drug-sniffing clog, officers. Some with guns drawn, secured a school hallway and ordered more than I 00 students to get on their knees and face the wall, handcuffing at least 12 who failed to immediately obey the police orders. Alerted by the clog. police physically searched students, …

Rethinking Retroactivity, Robert J. Jackson Jr.

Faculty Scholarship

Under the stringent test set forth in Teague v. Lane,' defendants convicted of criminal offenses are generally unable to collaterally attack their convictions by invoking constitutional rules of criminal procedure announced after their convictions become final.2 The purported exception to this general principle is said to require that a new constitutional rule be "implicit in the concept of ordered liberty'3 for it to be applied to criminal cases decided before its pronouncement. Once a rule of criminal procedure is characterized as "new,"4 Teague prohibits the rule's invocation in habeas proceedings unless the rule both "assure[s] that no man has been …

Originalism, Stare Decisis And The Promotion Of Judicial Restraint, Thomas W. Merrill

Faculty Scholarship

If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our allegiance?

Originalism – interpreting …

Can Lawyers Wear Blinders? Gatekeepers And Third-Party Opinions, John C. Coffee Jr.

Faculty Scholarship

The question in the title may seem to answer itself. But it does not; indeed, the question has been framed to explain my difficulty with Professor Schwarcz's position on third-party opinions. Frankly, Steven Schwarcz has taken a bold, tough position. Addressing what he sees as issues of "first impression," he asks "what it means for lawyers to issue legal opinions that create negative externalities," and "[i]f lawyers issuing legal opinions owe a duty to the public as well as to the opinion recipient." These are large, possibly even imponderable questions, but he answers them crisply and succinctly in the manner …

Serial Entrepreneurs And Small Business Bankruptcies, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Chapter 11 is thought to preserve the going-concern surplus of a financially distressed business – the extra value that its assets possess in their current configuration. Financial distress leads to conflicts among creditors that can lead to inefficient liquidation of a business with going-concern surplus. Chapter 11 avoids this by providing the business with a way of fashioning a new capital structure. This account of Chapter 11 fails to capture what is happening in the typical case. The typical Chapter 11 debtor is a small corporation whose assets are not specialized and rarely worth enough to pay tax claims. There …

The Mosaic Theory, National Security, And The Freedom Of Information Act, David E. Pozen

Faculty Scholarship

This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began asserting the theory more aggressively after 9/11, thereby testing the limits of executive secrecy and of judicial deference. Though essentially valid, the mosaic theory has been applied in ways that are unfalsifiable, in tension with the text and purpose of FOIA, and susceptible to abuse and overbreadth. This Note therefore argues, against precedent, for greater judicial scrutiny of mosaic theory …

The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffery Fagan

Faculty Scholarship

Shortly after the U.S. Supreme Court issued its decision in Atkins v. Virginia holding that the execution of mentally retarded persons violated the Eighth Amendment, legal scholars, advocates, and journalists began to speculate that the Court would next turn its attention to the question of the execution of persons who were juveniles – below eighteen years of age – at the time they committed homicide. Following the Atkins decision, four Justices expressed the view that the rationale of Atkins also supported the conclusion that execution of juvenile offenders was unconstitutional. A constitutional test of capital punishment for juveniles was inevitable. …

Contextual Analysis Of Tax Ownership, Alex Raskolnikov

Faculty Scholarship

Ownership is one of the most fundamental concepts in tax law, yet it remains remarkably confused. The uncertainty inhibits tax planning, leads to inconsistent responses from the government, and produces unexpected outcomes in the courts. There has been no shortage of scholarly attention to the issue, but most of the commentary has been either exceedingly narrow or focused on far-reaching reforms. As a result, the law of tax ownership lacks conceptual foundation. This article attempts to remedy the deficiency by proposing a comprehensive approach to tax ownership and demonstrating that the doctrine may (and should) be significantly clarified without a …

Rescuing Federalism After Raich: The Case For Clear Statement Rules, Thomas W. Merrill

Faculty Scholarship

The Rehnquist Court's federalism jurisprudence began with a focus on clear statement rules, but then turned to prohibitory limits on the scope of federal power. This Article specifies the differences between clear statement rules and prohibitory limitations, and outlines some of the factors courts should consider in determining which strategy to pursue in any given context. The Article argues that the scope of the Commerce Clause is an issue that should be resolved using clear statement rules. The Court's decision in United States v. Lopez to follow a prohibitory approach was both strategically mistaken and poorly executed. Although the principles …

Statutes That Are Not Static – The Case Of The Apa, Peter L. Strauss

Faculty Scholarship

...[T]he lesson of the past two hundred years is that we will do well to be on our guard against all-purpose theoretical solutions to our problems. As lawyers we will do well to be on our guard against any suggestion that, through law, our society can be reformed, purified, or saved. The function of law, in a society like our own, is altogether more modest and less apocalyptic. It is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it must be assumed, there is a general consensus among us. …

The Post-Enron Identity Crisis Of The Business Lawyer, William H. Simon

Faculty Scholarship

The practices and institutions of business lawyering are undergoing a reassessment and revision as radical as anything that has occurred since the late nineteenth century, when the modern professional association and the modern corporate law firm were born. The pace of change has intensified,but its directions remain contested. The articles in this colloquium depict a corporate bar torn between competing role conceptions along a variety of dimensions.

Earnings Management As A Professional Responsibility Problem, William H. Simon

Faculty Scholarship

Not infrequently, managers of public companies propose to do things – rearrange their operations, restructure assets and liabilities, sell and buy property – solely for the purpose of achieving accounting effects they desire. Most often they want an increase in current reported earnings per share, though sometimes they prefer a current decrease in the earnings they would otherwise report when it will allow them to show a smoothly increasing pattern of earnings in the future.

Sometimes the desired effects require outright lying or violations of Generally Accepted Accounting Principles (GAAP), in which cases the maneuvers are plainly illegal. But even …

The Return Of Spending Limits: Campaign Finance After Landell V. Sorrell, Richard Briffault

Faculty Scholarship

On August 18, 2004, the United States Court of Appeals for the Second Circuit held that the First Amendment, as interpreted by the Supreme Court in Buckley v. Valeo, does not preclude mandatory limitations on campaign expenditures.In Landell v. Sorrell, the court concluded that limitations imposed by the state of Vermont on candidate spending in state election campaigns are "supported by [the state's] compelling interests in safeguarding Vermont's democratic process from 1) the corruptive influence of excessive and unbridled fundraising and 2) the effect that perpetual fundraising has on the time of candidates and elected officials.^" To …

Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt

Faculty Scholarship

Actuarial methods – i.e., the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome – now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate …

The Story Of Vermont Yankee: A Cautionary Tale Of Judicial Review And Nuclear Waste, Gillian E. Metzger

Faculty Scholarship

This Essay explores the puzzle of Vermont Yankee v. NRDC. Vermont Yankee stands as a definitive rejection of judicial efforts to control burgeoning informal rulemaking by adding to the procedural requirements contained in the Administrative Procedure Act. Yet judicial expansion of the APA's procedural requirements has continued apace, and the Court's simultaneous sanction of searching substantive scrutiny sits oddly with its excoriation of the D.C. Circuit for that court's perceived procedural excesses. To understand Vermont Yankee, the Essay puts the decision in its administrative and judicial context, exploring the case law and practical dilemmas facing administrators, advocates, and judges as …

Legal Protection Of Technological Measures Protecting Works Of Authorship: International Obligations And The Us Experience, Jane C. Ginsburg

Faculty Scholarship

The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial …

Risk Management In Long-Term Contracts, Victor P. Goldberg

Faculty Scholarship

Long-term contracts are designed to manage risk. After a brief discussion of why it is unhelpful to invoke risk aversion for analyzing serious commercial transactions between sophisticated entities, this paper focuses on adaptation to changed circumstances. In particular, it considers the options to abandon and the discretion to change quantity. It then analyzes a poorly designed contract between Alcoa and Essex showing how the parties misframed their problem and designed a long-term contract that was doomed to fail.

Legal Socialization Of Children And Adolescents, Jeffrey Fagan, Tom Tyler

Faculty Scholarship

Research on children and the law has recently renewed its focus on the development of children's ties to law and legal actors. We identify the developmental process through which these relations develop as legal socialization, a process that unfolds during childhood and adolescence as part of a vector of developmental capital that promotes compliance with the law and cooperation with legal actors. In this paper, we show that ties to the law and perceptions of law and legal actors among children and adolescents change over time and age. We show that neighborhood contexts and experiences with legal actors shape the …

An Analysis Of The Nypd's Stop-And-Frisk Policy In The Context Of Claims Of Racial Bias, Andrew Gelman, Alex Kiss, Jeffrey Fagan

Faculty Scholarship

Recent studies by police departments and researchers confirm that police stop racial and ethnic minority citizens more often than whites, relative to their proportions in the population. However, it has been argued stop rates more accurately reflect rates of crimes committed by each ethnic group, or that stop rates reflect elevated rates in specific social areas such as neighborhoods or precincts. Most of the research on stop rates and police-citizen interactions has focused on traffic stops, and analyses of pedestrian stops are rare. In this paper, we analyze data from 175,000 pedestrian stops by the New York Police Department over …

The 527 Problem ... And The Buckley Problem, Richard Briffault

Faculty Scholarship

In the world of campaign finance, 2004 was without a doubt the year of the 527 organization. No other aspect of campaign financing received as much press coverage or public attention as the rise of the 527s. Expenditures by 527s – named after the section of the Internal Revenue Code under which they are organized – active in federal elections amounted to at least $405 million, accounting for more than one-tenth of total federal election spending and perhaps twenty to twenty-five percent of spending in the presidential campaign. Federal Election Commission ("FEC") Chairman Scott E. Thomas recently observed that "[there …

Attention Felons: Evaluating Project Safe Neighborhoods In Chicago, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

This research uses a quasi-experimental design to evaluate the impact of Project Safe Neighborhood (PSN) initiatives on neighborhood level crime rates in Chicago. Four interventions are analyzed: (1) increased federal prosecutions for convicted felons carrying or using guns, (2) the length of sentences associated with federal prosecutions, (3) supply-side firearm policing activities, and (4) social marketing of deterrence and social norms messages through justice-style offender notification meetings. Using an individual growth curve models and propensity scores to adjust for non-random group assignment, our findings suggest that several PSN interventions are associated with greater declines of homicide in the treatment neighborhoods …