Law Commons^™

Timbers Of Inwood Forest, The Economics Of Rent, And The Evolving Dynamics Of Chapter 11, Edward R. Morrison

Faculty Scholarship

The Supreme Court's decision in Timbers of Inwood Forest occupies an unhappy position in bankruptcy case law. It is often remembered as a troubled interpretation of the Code, denying undersecured creditors compensation for an important source of depreciation – depreciation in the real value of a creditor's claim during a lengthy reorganization process. But Timbers was not a simple case in which a bank was denied adequate protection for lost investment opportunities. It was instead a case in which the bank tried to opt out of the bankruptcy process itself. The debtor was an apartment complex. After it entered bankruptcy, …

Certifying Questions To Congress, Amanda Frost

Scholarly Articles in Law Reviews & Journals

As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear - particularly issues that implicate the statute's constitutionality - the court could stay the case and refer the question to Congress, much in the same way that courts …

American Husbandry: Legal Norms Impacting The Production Of (Re)Productivity, Camille Nelson

Scholarly Articles in Law Reviews & Journals

This article concentrates on the normative legal structure that established complete control over female slaves by sanctioning their subjugation to further slaveholders’ profit maximization and social domination. The criminal law sanctioned the rape of slave women, and the legal doctrine of partus sequitur ventrem mandated that the legal status of children born to slave women was determined by the mother’s legal status. The slave master derived an economic benefit from ensuring slave women had as many children as possible. This system ensured that slave women held no legally protected autonomy over their own bodies or over their own offspring.

Such …

Training Law Students To Be International Transactional Lawyers - Using An Extended Simulation To Educate Law Students About Business Transactions, Daniel D. Bradlow, Jay Finkelstein

Scholarly Articles in Law Reviews & Journals

The article describes an innovative approach to educating law students about the legal issues and the role of lawyers in negotiating international business transactions. It is based on our experiences in developing and teaching a course that is built around a semester-long simulation exercise and taught in counterpart classes at two law schools. The students in these classes represent the opposing parties and negotiate a cross-border business transaction involving a joint venture agreement, a licensing agreement and a long-term supply contract. The students, who attend either the American University Washington College of Law or the Centre for Energy Mineral and …

Private Finance, Social Responsibility, And Transitional Justice: The Case For South African Reconciliation And Development Bonds, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Why Not A Miranda For Searches?, Gerard E. Lynch

Faculty Scholarship

I am delighted to be here today.

I am delighted to be at The Ohio State University, which has not only built a truly extraordinary criminal law and procedure faculty, including Professor Joshua Dressler, Alan Michaels, Sharon Davies, and Douglas Berman, but has also accumulated a large number of alumni of my home institution, Columbia Law School, including my former students, Professor Edward Foley and the aforesaid Professors Davies and Michaels, as well as Professor Deborah Jones Merritt, who is quite literally a daughter of Columbia, where her father is a distinguished emeritus member of the faculty, my esteemed senior …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

Changing Name Changing: Framing Rules And The Future Of Marital Names, Elizabeth F. Emens

Faculty Scholarship

What laws should govern spouses' names at marriage? If a man and a woman marry, should the woman's name change automatically? Or should the woman's name remain the same unless she goes through more or less complicated steps to change it? Contrary to convention, should the man's name change to the woman's? Should both their names be hyphenated? Many variations could be imagined.

The law of marital names has undergone a significant transformation over the past forty years. For about a hundred years of U.S. history, states required married women to take their husbands' names in order to engage in …

The Importance Of The Secret Ballot In Law Faculty Personnel Decisions: Promoting Candor And Collegiality In The Academy, Ira Robbins

Scholarly Articles in Law Reviews & Journals

This article began as an exercise in self-education. At a recent faculty meeting, my colleagues were preparing to vote on a slate of candidates. Because discussion had become heated, a tenured faculty member moved for a secret ballot on the appointments committee's recommendation. The main argument in favor of the secret ballot was that, for the protection of untenured professors (who have equal votes with tenured professors on questions of hiring new faculty), neither their senior colleagues nor the Dean should be permitted to know how they voted. The ensuing discussion on whether to hold a secret ballot was no …

Obligations Of Privilege, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Little attention is paid to the nature of the high incomes of the rich or to the legal or norm-based obligations the rich owe society. This popular and scholarly inattention reflects the general acceptance of the idea that the rich have earned their high incomes and owe society little. By looking at income equations revealing society's role in high incomes and the obligations of the rich, the Article urges a strengthening of the obligations of the rich and rejects the argument that the legal community ought not consider the moral demands associated with high incomes.

A 'Social Dimension' In European Private Law? The Call For Setting A Progressive Agenda, Fernanda Nicola, Ugo Mattei

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Aesthetics Of Commercial Law: Domestic And International Implications, Heather Hughes

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Counterintuitive Thoughts On Legal Scholarship And Secured Transactions, Heather Hughes

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Quantum Meruit And The Restatement (Third) Of Restitution And Unjust Enrichment, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Thirty years ago, Professor Graham Douthwaite said that restitution can "arise in a bedazzling variety of situations."' He also said that practitioners usually are not aware of "the restitutionary implications or potential" of their clients' problems. Over 50 years ago, Professor John Dawson said that "[i]t is doubtful even now whether most lawyers have an adequate conception of the range and resources of the remedy." About twenty years ago, I said of Professor Dawson's statement, "It is doubtful whether the situation has much improved in the last thirty years." Unfortunately, I can still repeat that concern.

Advances And Missed Opportunities In The International Prosecution Of Gender-Based Crimes, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: In the past decade, and particularly since 1998, there has been an incredible transformation in the treatment of sex-based and gender- based violence' in the fields of international humanitarian law and international criminal law. Before this, crimes committed exclusively or disproportionately against women and girls, in times of conflict, were largely either ignored, or at most, treated as secondary to other crimes. Despite the fact that rape and other forms of sexual violence had been widely reported during World War HI, for instance, the crime of rape was not expressly included in either the London Charter, establishing the International …

Lovin’ The Man: Examining The Nexus Of Irony, Hypocrisy And Curiosity, Camille Nelson

Scholarly Articles in Law Reviews & Journals

INTRODUCTION I had just finished reading The Legends Who Lunch: A Weekend of Glory at Promised Land, an article in Oprah Winfrey's magazine.' The article gave an account of a weekend at Oprah's place in California-a weekend in which Oprah honored the black women who paved the way for her success.2 The weekend was devoted to those courageous black women who allowed for the possibility of realizing potential and who simply opened fans to the possibility of allowing ourselves to believe, if only for a second, that we could do anything. This article resonated with me. I sat crying on …

‘Settling Accounts’ Revisited: Reconciling Global Norms With Local Agency, Diane F. Orentlicher

Scholarly Articles in Law Reviews & Journals

In the mid- to late-1980s, the discourse of transitional justice was shaped above all by the experience of countries in Latin America, where military forces continued to exercise autonomous power even after ceding formal authority to democratically elected governments. In this setting, while human rights professionals agreed that fledgling democracies should undertake prosecutions in accordance with their international legal obligations, they were divided over the question of whether further development of international obligations in respect of punishment was desirable. Nor was it clear what, precisely, international law already required. Writing in the early 1990s, the author of this essay concluded …

Shape Stops Story, Elizabeth F. Emens

Faculty Scholarship

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need …

Reconfiguring Industrial Policy: A Framework With An Application To South Africa, Ricardo Hausmann, Dani Rodrik, Charles F. Sabel

Faculty Scholarship

The main purpose of industrial policy is to speed up the process of structural change towards higher productivity activities. This paper builds on our earlier writings to present an overall design for the conduct of industrial policy in a low- to middle-income country. It is stimulated by the specific problems faced by South Africa and by our discussions with business and government officials in that country. We present specific recommendations for the South African government in the penultimate section of the paper.

Deconstructing Hirota: Habeas Corpus, Citizenship, And Article Iii, Stephen I. Vladeck

Scholarly Articles in Law Reviews & Journals

The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the “war on terrorism” has been a popular topic for courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In a series of recent cases, the US government has invoked the Supreme Court’s obscure (and obtuse) 1948 decision in Hirota v. MacArthur (338 US 197) for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the “Multinational …

Review Of The 2006 Trademark Decisions Of The Federal Circuit, Christine Haight Farley, Geri L. Haight

Scholarly Articles in Law Reviews & Journals

The United States Court of Appeals for the Federal Circuit delivered only seven precedential trademark opinions in 2006. The Court addressed a range of substantive issues including trade dress configuration, reverse passing off, and genericism. Notably, two of the seven precedential decisions involved plant names protected by the Plant Variety Protection Act. The Court decided only one case in 2006 where the primary issue was procedural, rather than substantive. In that case, the Court sided with the Trademark Trial and Appeal Board and affirmed its decision on the applicability of the res judicata doctrine. In 2006, as in previous years, …

Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger

Faculty Scholarship

Professor Weinstein examines how the IRB laws would fare under Supreme Court doctrine, and whereas it is my view that these laws should be considered unconstitutional, he reaches largely the opposite conclusion. His article therefore offers a valuable opportunity for further exploration of the constitutional questions, and although there is not sufficient space here to discuss all of his analysis, it seems important at least to draw attention to the major points on which we take different perspectives.

Getting Permission, Philip A. Hamburger

Faculty Scholarship

Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …

Progressive Lawyering In Politically Depressing Times, Susan Carle

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Susan Sturm's important work offers a ray of optimism in a contemporary political climate most people of progressive inclinations find somewhat depressing. Sturm examines new models for bringing about institutional re- form without extensive management from legislatures or courts. As Sturm recognizes, resort to litigation as a strategy for increasing gender parity in employment is not a promising option these days, for several sets of reasons. First, as Sturm has explained in an earlier pathbreaking article, judicial decrees are not well suited to addressing "second generation" problems of structural reform of institutions, such as eliminating manifestations of race and …

The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Market Definition: An Analytical Overview, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This essay surveys important issues in antitrust market definition. It identifies settings in which market definition is useful, and evaluates methods of defining markets. It considers whether markets should be defined with respect to demand substitution only or whether supply substitution also should count. It addresses practical issues in defining markets, including the probative value of various types of evidence, how much buyer substitution is too much, application of the market definition algorithm of the Horizontal Merger Guidelines, the Cellophane fallacy, and the advantages and disadvantages of defining submarkets. It also evaluates several controversial approaches to market definition, including price …

Beyond Schumpeter Vs. Arrow: How Antitrust Fosters Innovation, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

The relationship between competition and innovation is the subject of a familiar controversy in economics, between the Schumpeterian view that monopolies favor innovation and the opposite view, often associated with Kenneth Arrow, that competition favors innovation. Taking their cue from this debate, some commentators reserve judgment as to whether antitrust enforcement is good for innovation. Such misgivings are unnecessary. The modern economic learning about the connection between competition and innovation helps clarify the types of firm conduct and industry settings where antitrust interventions are most likely to foster innovation. Measured against this standard, contemporary competition policy holds up well. Today's …

U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This essay, originally prepared for a symposium on Guantanamo and international law, provides an brief overview of the elements that a comprehensive US counterterrorism should encompass. This overview is set against the question of how the US, as the world's superpower, ought to address its international law obligations. The essay then sets that question against the still-further question of what it means to be the superpower in a world that some believe is gradually evolving into a multipolar world, but which is currently a world of a conjoined US-international global system of security.

The essay defends the concept of counterterrorism …

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …