Law Commons^™

Democracy's Handmaid, Robert L. Tsai

Scholarly Articles in Law Reviews & Journals

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Creative Commons And The New Intermediaries, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

This symposium contribution examines the disintermediating and reintermediating roles played by Creative Commons licenses on the Internet. Creative Commons licenses act as a disintermediating force because they enable end-to-end transactions in copyrighted works. The licenses have reintermediating force by enabling new services and new online communities to form around content licensed under a Creative Commons license. Intermediaries focused on the copyright dimension have begun to appear online as search engines, archives, libraries, publishers, community organizers, and educators. Moreover, the growth of machine-readable copyright licenses and the new intermediaries that they enable is part of a larger movement toward a Semantic …

The Movement For Open Access Law, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

My claim in this contribution to this important symposium is that the law and legal scholarship should be freely available on the Internet, and copyright law and licensing should facilitate achievement of this goal. This claim reflects the combined aims of those who support the movement for open access law. This nascent movement is a natural extension of the well-developed movement for free access to primary legal materials and the equally well-developed open access movement, which seeks to make all scholarly journal articles freely available on the Internet. Legal scholars have only general familiarity with the first movement and very …

Framing Affirmative Action, Kimberlé W. Crenshaw

Faculty Scholarship

With the passage of the Michigan Civil Rights Initiative ("MCRI"), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls "racial preferences" to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination.

On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …

Our International Constitution, Sarah H. Cleveland

Faculty Scholarship

This Article seeks to challenge and redirect contemporary debate regarding the role of international law in constitutional interpretation based upon an examination of historical Supreme Court practice. The Article has three goals: It first marshals the weight of evidence regarding the Supreme Court's historical use of international law in constitutional analysis, to rebut the claim that the practice is new. It then analyzes the ways that the Court has used international law from a legitimacy perspective, and finally draws lessons from the historical practice to offer preliminary suggestions- regarding the normatively appropriate use of international law.

Objections In Conscience To Medical Procedures: Does Religion Make A Difference Lecture?, Kent Greenawalt

Faculty Scholarship

How should the government res pond if people refuse standard medical treatment? What should the government do if people refuse medical treatment for their children, and what autonomy should teenagers be given in making such choices? Is religion a proper basis for refusing such medical treatment? Furthermore, should medical practitioners have a privilege not to render services that they object to in conscience? This article analyzes such questions and proposes that the most sensible answers depend on context. Legislatures should sometimes create no exemptions, should sometimes create exemptions based on nonreligious criteria, and should sometimes use criteria framed in terms …

The Journal: Fortieth Anniversary Volume, Debra A. Livingston

Faculty Scholarship

This is to congratulate the editors of the Columbia Journal of Law and Social Problems as they mark the Journal's fortieth anniversary. The Journal's first editor-in-chief, Andrew Krulwich, recalled on the occasion of the thirtieth anniversary that the Journal "began as a germ of an idea to expand the law school journal experience to include more empirical methods and social issues." In 1965, when the first issue was published, there was a growing sense among students and professors that "the traditional sources of legal knowledge," including the established journals and the scholarly expectations that had grown up around them, were …

The Accardi Principle, Thomas W. Merrill

Faculty Scholarship

This article is organized as follows. Part I reviews the history of the Accardi principle in the Supreme Court. We learn that the Court has intimated three different theories about the source of the Accardi principle, and has left many questions about its dimensions unanswered. Part II surveys the use of the principle by the D.C. Circuit. This provides additional insights into how the Accardi principle works in practice, including the importance of questions about the meaning of agency regulations and whether agency regulations can render otherwise unreviewable agency action subject to judicial review. Part III seeks to restate the …

Lawyering Across Multiple Legal Orders – Rethinking Legal Education In Comparative And International Law, Katharina Pistor

Faculty Scholarship

I appreciate the opportunity to briefly introduce a new course Columbia Law School is offering to first year students for the first time this spring semester. The course, which I will be co-teaching with my colleague George Bermann, is called "Lawyering in Multiple Legal Orders." The title reflects the basic "philosophy" of the course, namely that legal practitioners today will invariably work in more than one legal order. This notion is not unfamiliar to lawyers practicing in federal systems, such as the United States. By the end of the first semester students have a basic understanding of the federalist system …

The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah S. Purdy

Faculty Scholarship

Political thinkers have long worried that freedom might be selfundermining, tending to erode the liberal rights and democratic politics that form its foundations. The argument has ancient and modern versions, versions of the political left and of the right. No doubt the only adequate answer is the sum of the answers to many particular questions: whether and when popular elections undermine liberal rights, how free markets enhance or undermine democracy, and so forth. In this article, I address an emerging problem in a central area of contemporary freedom: reproductive autonomy. I ask whether reproductive autonomy can undermine the political conditions …

The Promise (And Limits) Of Neuroeconomics, Jedediah S. Purdy

Faculty Scholarship

Neuroeconomics — the study of brain activity in people engaged in tasks of reasoning and choice — looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This Article explains what is most exciting about the new field and lays out some specific research tasks for it.

The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy

Faculty Scholarship

This Article draws on an episode of nineteenth-century American doctrinal history to develop a pluralist approach to explaining changes in property law. It addresses the question: What causes ac­count for the development of property regimes across time? The courts' answer emerges from examination of nineteenth-century American reform of the law of waste, which governs the changes te­nants may make in the estates they occupy. A line of state supreme court cases, beginning in 1810, transformed the doctrine from the strict rule of English common law to a flexible standard. Economic analysis helps to explain the change; the full story, however, …

Simon Says Take Three Steps Backwards: The National Conference Of Commissioners On Uniform State Laws Recommendations On Child Representation, Jane M. Spinak

Faculty Scholarship

In considering whether I wanted to submit a response to this conference, I turned back to the Fordham Law Review's Proceedings of the Conference on Ethical Issues in the Legal Representation of Children, now referred to by this conference's participants as Fordham. While the entire volume helped me to formulate this response, I want to begin by acknowledging Linda Elrod's and Ann Haralambie's two responses in Fordham as essential to my decision. In a few short pages they encapsulated the essential message of Fordham: that by the end of the last century, the practice of lawyers for children was to …

The Paradox Of The Drug Elimination Program In New York City Public Housing, Jeffrey A. Fagan, Garth Davies, Jan Holland

Faculty Scholarship

In this study, we examine the effects of the DEP intervention at three levels of complementary theoretical and practical relevance: the public housing development itself, the neighborhood in which public housing is situated, and the police precinct where the tract is located. From surveys of residents, observations of program activities, and analyses of NYCHA's program records, we compiled detailed information on the components of DEP and the reactions of public housing residents to each type of intervention. We then analyzed panel data from 1985-1996 to estimate the effects of DEP on crime rates in and around the city's public housing …

The Media As Participants In The International Legal Process, Monica Hakimi

Faculty Scholarship

We know what we know about current international events through the media. The media (with their instantaneous transmission of images and sound across great distances) inform us of everything from the train bombings in Madrid and London, to human rights abuses in Darfur, to the fall of Saddam Hussein’s Iraq. Yet the media do not simply communicate raw information; they selectively filter, define and give shape to the events that they cover — in terms of what is happening, whether it is appropriate, and how relevant international actors should and do respond. The media thus are the nerves of the …

After Dura: Causation In Fraud-On-The-Market Actions, 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 lob-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 defendants' bar equally enthusiastically hailed it as "a …

Clark's Treatise On Corporate Law: Filling Manning's Empty Towers, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Almost 45 years ago, in an elegantly depressive account of the then current state of corporate law scholarship, Bayless Manning announced the death of corporation law "as a field of intellectual effort." Manning left us with an affecting image of a once grand field long past its prime, rigid with formalism and empty of content:

When American law ceased to take the "corporation" seriously, the entire body of law that had been built upon that intellectual construct slowly perforated and rotted away. We have nothing left but our great empty corporate statutes towering skyscrapers of rusted girders, internally welded together …

Disclosure And Fair Resolution Of Adverse Events, Carol B. Liebman, Chris Stern Hyman

Faculty Scholarship

The health care system in the United States is in turmoil. Patients are being harmed by too many, often fatal, mistakes. At the same time, physicians and hospitals are trying to cope with a costly medical malpractice crisis. These two crises create a vicious cycle. When something goes wrong in patient care, physicians and hospitals withhold apologies and offer as little information as possible for fear that anything they say may be used against them should patients or family members sue. Family members, in many cases, sue not only to receive compensation for injuries, but also in search of answers …

Domestic Partnerships, Implied Contracts, And Law Reform, Elizabeth S. Scott

Faculty Scholarship

The domestic partnership chapter of the Principles is the shortest chapter, but, as the contributions to this volume suggest, among the most interesting to many people. The legal regulation of informal intimate unions generally and particularly the Principles' approach of creating a status that carries the legal rights and obligations of marriage between cohabiting parties have generated considerable debate. In some quarters, the domestic partnership provisions are admired as an effective mechanism to protect dependent partners in marriage-like unions who otherwise may be unable to establish claims to property and support when their relationships end. Others praise the Principles for …

Issues In Article Iii Courts, Debra A. Livingston

Faculty Scholarship

Cases implicating classified information can pose difficult legal issues for Article III courts, and these issues may well grow more complicated and arise more frequently as the global war on terror continues. The manner in which these issues are resolved has profound implications for the national security, for the procedural rights of litigants, and for the public's ability to scrutinize legal proceedings. Indeed, the expanded use of secret evidence in Article III courts may raise questions about the very character of the courts themselves. Is there a point at which the demands placed upon these courts, pushing them in the …

The Housing Court Act (1972) And Computer Technology (2005): How The Ambitious Mission Of The Housing Court To Protect The Housing Stock Of New York City May Finally Be Achieved, Mary Zulack

Faculty Scholarship

1972 to concentrate housing-related cases in a single court and to involve judges in the process of seeing that the housing stock was repaired. When I agreed to contribute an essay on how the Housing Court is fulfilling its obligation to preserve the housing stock, for the October 29, 2004 conference held by The Justice Center of the New York County Lawyers' Association, I imagined I would review annual court-produced statistics. I expected this to include 30 years worth of information about repairs claimed to be needed, orders to repair issued, number of repairs actually made, the range of enforcement …

Beyond City And Suburb: Thinking Regionally, Richard Briffault

Faculty Scholarship

“City” and “suburb” as they were known and debated in the twentieth century are no more. Increasingly, the key urban unit in metropolitan America is the region. Robert Bruegmann’s Sprawl: A Compact History, a chronicle of the melding of city and suburban land use patterns, illustrates this development. Joel Kotkin’s The City: A Global History, which expresses concern about the loss of traditional urban distinctiveness, also reflects this. In her review of both books, Nicole Stelle Garnett appropriately raises issues of interlocal competition and equity, and the quality of urban life in metropolitan America, but she errs in framing them …

Lawrence And The Right To Metaprivacy, Jamal Greene

Faculty Scholarship

Americans take seriously the difference between acts and ideas. We remain mystified, for example, by the to-do about the cartoons depicting the Prophet Muhammad. The act-idea distinction is alive and well in our culture, and it remains largely intact in American law. No store owner puts up a sign saying, “You covet it, you bought it!” If you want to show your commitment to “manliness” by refusing to hire women, you’re out of luck. Don’t want to pay your taxes because you don’t like the Administration’s views? Move to Canada. We let the government erect at least rudimentary boundaries between …

Federal Sentencing Under "Advisory" Guidelines: Observations By District Judges, Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch, Gregory A. Presnell, Daniel J. Capra

Faculty Scholarship

Good evening. This is the Philip Reed program. It is part of the Centennial Celebration of Fordham Law School. The topic tonight is entitled "Federal Sentencing Under 'Advisory' Guidelines."

There are approximately ten district judges who have written what I would refer to as challenging and influential opinions on how federal courts should approach sentencing under advisory Guidelines. We have five of them on this panel.

Our format tonight is to take short opening statements from the judges and then to discuss some particular issues of controversy in sentencing after Booker. I plan to open it up to questions and …

Six Myths About Kelo: Kelo V. City Of New London, Thomas W. Merrill

Faculty Scholarship

Kelo v. City of New London, 125 S. Ct. 2655 (2005), is unique in the modem annals of law in terms of the negative response it has evoked. The initial reaction by lawyers familiar with the case was one of lack of surprise. Within days, however, Internet bloggers, television commentators, and neighbors talking over backyard fences decided that Keio was an outrage. Even Justice Stevens sought to distance himself from his own majority opinion, declaring in a speech to a bar association that he thought the outcome was "unwise," and that he would not have supported it if he were …

The "American" And The "International" In The American Journal Of International Law, Lori Fisler Damrosch

Faculty Scholarship

This essay explores the American and international components of the AJIL's identity, with attention to intellectual agendas as well as to individuals who have influenced the Journal in its first century. Part I asks about "American" and "international" preoccupations in the AJIL's substantive work, foreshadowing some of the themes to be developed in more depth in other essays in this centennial series. What have we understood to fall within the purview of an American journal of international law? Have we represented perspectives on our subject in a specifically American or a broadly international way? Part II looks at …

Centennial Essays: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The first words of the first essay published in our pages pose a challenge as prescient as it is timely:

The increase of popular control over national conduct, which marks the political development of our time, makes it constantly more important that the great body of the people in each country should have a just conception of their international rights and duties.

With this precept in mind, we begin our celebration of the one-hundredth anniversary of the American Journal of lnternational Law and its publisher, the American Society of International Law.

Constitutional Lessons From Europe, George A. Bermann

Faculty Scholarship

Given his range of interests, a tribute to Francis Jacobs could appropriately address just about any area of contemporary legal concern. But Francis Jacobs is one whose writings on and off the bench have, for an American, been especially illuminating, due to his unique capacity to translate fundamental issues of European constitutional law into terms that we can grasp. And so, notwithstanding the quantity of writing on the recent constitutional adventure of the European Union ("EU") that has already accumulated, I add yet one more set of reflections on this theme in Francis Jacobs' honor, this time on the possible …

Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China's Peasants. The book exposed official malfeasance on Zhang's watch and the resultant peasant hardships. Zhang demanded an apology from the book's authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In 2000, Song Dianwen, a peasant, sued …

Broken Windows: New Evidence From New York City And A Five-City Social Experiment, Bernard Harcourt, Jens Ludwig

Faculty Scholarship

In 1982, James Q. Wilson and George Kelling suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. More than twenty years later, the three most populous cities in the United States – New York, Chicago, and, most recently, Los Angeles – have all adopted at least some aspect of Wilson and Kelling's theory, primarily through more aggressive enforcement of minor misdemeanor laws. Remarkably little, though, is currently known about the effect of broken windows policing on crime.

According to a recent National Research Council report, existing research does not provide …