Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 130

Full-Text Articles in Law

United States Response To Questionnaire, June M. Besek, Jane C. Ginsburg, Caitlin Grusauskas Apr 2009

United States Response To Questionnaire, June M. Besek, Jane C. Ginsburg, Caitlin Grusauskas

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.


Into The Void: Governing Finance In Central & Eastern Europe, Katharina Pistor Jan 2009

Into The Void: Governing Finance In Central & Eastern Europe, Katharina Pistor

Faculty Scholarship

Twenty years after the fall of the iron curtain, which for decades had separated East from West, many countries of Central and Eastern Europe (CEE) are now members of the European Union and some have even adopted the Euro. Their readiness to open their borders to foreign capital and their faith in the viability of market self-governance as well as supra-national governance of finance is both remarkable and almost unprecedented. The eagerness of the countries in CEE to join the West and to become part of a regional and global regime as a way of escaping their closeted socialist past …


The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon Jan 2009

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon

Faculty Scholarship

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social …


Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph Jan 2009

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid …


Assessing Chinese Legal Reforms, Benjamin L. Liebman Jan 2009

Assessing Chinese Legal Reforms, Benjamin L. Liebman

Faculty Scholarship

Over the past thirty years China has engaged in what is perhaps the most rapid development of any legal system in the history of the world. The Chinese legal system has been fundamentally transformed since 1978. At the beginning of the reform era there were few laws or trained personnel. Today, China has sophisticated legal institutions, thousands of laws and regulations, and the third largest number of lawyers in the world. Law has begun to regulate both state and individual behavior in ways that were inconceivable in 1978. Commitment to the rule of law has become an important part of …


Beyond The Wto? An Anatomy Of Eu And Us Preferential Trade Agreements, Henrik Horn, Petros C. Mavroidis, André Sapir Jan 2009

Beyond The Wto? An Anatomy Of Eu And Us Preferential Trade Agreements, Henrik Horn, Petros C. Mavroidis, André Sapir

Faculty Scholarship

It is often alleged that PTAs involving the EC and the US include a significant number of obligations in areas not currently covered by the WTO Agreement, such as investment protection, competition policy, labour standards and environmental protection. The primary purpose of this study is to highlight the extent to which these claims are true. The study divides the contents of all PTAs involving the EC and the US currently notified to the WTO, into 14 'WTO' and 38 'WTO-X' areas, where WTO provisions come under the current mandate of the WTO, and WTO-X provisions deal with issues lying outside …


Seven Things The New Epa Administrator Should Do, Michael B. Gerrard Jan 2009

Seven Things The New Epa Administrator Should Do, Michael B. Gerrard

Faculty Scholarship

In view of the dramatic shift in the nation's environmental policy that is presaged by the ascension of Barack Obama, I have been asked to suggest several actions that should be undertaken by the new administrator of the Environmental Protection Agency (EPA).

This article was written on Jan. 26, 2009, six days after the inauguration. It is to appear in March. Thus every reader will know something that, today, I don't – what long-pent-up actions were taken by President Obama shortly after he moved into the Oval Office. But I am guessing that by the time this article appears, Lisa …


Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa Jan 2009

Self-Defense And The Psychotic Aggressor, George P. Fletcher, Luis E. Chiesa

Faculty Scholarship

This chapter presents an authoritative overview of self-defense against the psychotic aggressor. More specifically, it examines whether one can justifiably kill a faultless, insane assailant to save himself or another from imminent and serious harm. It considers the disagreement among scholars as to whether the defensive response should be considered justified or merely excused, or whether the specific ground of acquittal should be self-defense or necessity. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as proportionality, self-defense against wrongful attack, justification of homicide against innocent aggressors without …


What Went Wrong? A Tragedy In Three Acts, John C. Coffee Jr. Jan 2009

What Went Wrong? A Tragedy In Three Acts, John C. Coffee Jr.

Faculty Scholarship

I am going to tell today a simple story of greed, rationalization, and sloth; it is a tragedy in three acts. The first act involves the collapse of what I will call the Great American Housing Bubble. The second act involves the failure of the gatekeepers, in particular; what happened at those credit rating agencies that could lead them to rate everything investment-grade? In the final act, I will turn to the collapse of the investment banks, the failure of securities regulation, and where that leaves us.

Although this is a tragedy, it is not a Shakespearian tragedy because Shakespearian …


Why Civil Liability For Disclosure Violations When Issuers Do Not Trade?, Merritt B. Fox Jan 2009

Why Civil Liability For Disclosure Violations When Issuers Do Not Trade?, Merritt B. Fox

Faculty Scholarship

Civil damages liability for securities law periodic disclosure violations has come under attack, particularly fraud-on-the-market class-action lawsuits for investor losses incurred in connection with trading in the secondary market when the issuer has not sold shares. The main line of attack has been the weakness of the compensatory rationale for such suits. Without a compensatory justification, the attackers suggest, the availability of this cause of action is hard to defend given the very substantial use of social resources involved in the litigation that it generates. The critics are right concerning the weakness of the compensatory justification for civil liability. They …


Presidential Popular Constitutionalism, Jedediah S. Purdy Jan 2009

Presidential Popular Constitutionalism, Jedediah S. Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens' constitutional understandings. This Article sets out a "grammar" of …


State Bar Task Force: 22 New York Actions To Address Climate Change, Michael B. Gerrard Jan 2009

State Bar Task Force: 22 New York Actions To Address Climate Change, Michael B. Gerrard

Faculty Scholarship

The new Obama administration is reversing eight years of federal refusal to take mandatory action to address climate change. However, the lower levels of government will continue to play central roles. States and municipalities are the principal regulators of building construction, land use, and electric utilities; they are major users of goods and services that generate greenhouse gases (GHGs) – and they have other key roles.

To see how New York can better contribute to these efforts, in 2008 Bernice K. Leber, president of the New York State Bar Association, convened a Task Force on Global Warming. Its 12 members …


Banking Reform In The Chinese Mirror, Katharina Pistor Jan 2009

Banking Reform In The Chinese Mirror, Katharina Pistor

Faculty Scholarship

This paper analyzes the transactions that led to the partial privatization of China’s three largest banks in 2005-06. It suggests that these transactions were structured to allow for inter-organizational learning under conditions of uncertainty. For the involved foreign investors, participation in large financial intermediaries of central importance to the Chinese economy gave them the opportunity to learn about financial governance in China. For the Chinese banks partnering with more than one foreign investor, their participation allowed them to benefit from the input by different players in the global financial market place and to learn from the range of technical and …


Cash-For-Clunkers Program: Better For Industry Than Environment, Michael B. Gerrard Jan 2009

Cash-For-Clunkers Program: Better For Industry Than Environment, Michael B. Gerrard

Faculty Scholarship

On June 24, President Barack Obama signed into law the Consumer Assistance to Recycle and Save Act of 2009 (CARS). For a limited period of time, it will give up to $4,500 to owners of vehicles with poor fuel economy who trade them in for more efficient new vehicles. This “cash-for-clunkers” program was touted as meeting three objectives: increasing vehicle sales, at a time when the U.S. auto industry is struggling; reducing fuel use; and reducing greenhouse gas emissions.

This column will describe how the new program will work and what kinds of vehicles can be turned in and purchased …


Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman Jan 2009

Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman

Faculty Scholarship

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the "special advocate" model employed by Britain and Canada, and the 'Judicial management" model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of 'fundamental fairness" or "due process," …


Happy Families? Translating Positive Psychology Into Family Law, Clare Huntington Jan 2009

Happy Families? Translating Positive Psychology Into Family Law, Clare Huntington

Faculty Scholarship

Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …


Burden Of Proof In Environmental Disputes In The Wto: Legal Aspects, Henrik Horn, Petros C. Mavroidis Jan 2009

Burden Of Proof In Environmental Disputes In The Wto: Legal Aspects, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This paper discusses allocation of burden of proof in environmental disputes in the WTO system. Besides laying down the natural principles that (i) the complainant carries the burden to (ii) make a prima facie case that its claim holds, WTO adjudicating bodies have said little of more general nature. The paper therefore examines the case law of relevance to environmental policies, to establish the rules concerning burden of proof that are likely to be applied in such disputes. Evaluating this case law, the paper makes two observations,: First, in cases submitted under the GATTWTO, adjudicating bodies have committed errors regarding …


U.S. Class Actions And The "Global Class", George A. Bermann Jan 2009

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …


A New Proposal For Loan Modifications, Christopher J. Mayer, Edward R. Morrison, Tomasz Piskorski Jan 2009

A New Proposal For Loan Modifications, Christopher J. Mayer, Edward R. Morrison, Tomasz Piskorski

Faculty Scholarship

We propose a new three-pronged plan to address the recent harmful flood of foreclosures. Our plan would address the major barriers that inhibit the ability of third-party servicers to modify mortgages the way portfolio lenders are now doing with greater success. The plan provides greater compensation for servicers to perform their duties, removes legal constraints that inhibit modification, and addresses critical second liens that often get in the way of effective mortgage modifications. Our plan has more modest costs than competing plans and is likely to be the most effective while still protecting the rights of investors in mortgage-backed securities.


Coal-Fired Powerplants Dominate Climate Change Litigation, Michael B. Gerrard Jan 2009

Coal-Fired Powerplants Dominate Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Litigation aiming to reduce emissions of greenhouse gases (GHGs) is coming to be dominated by battles over coal-fired power plants. Ten of the last 20 judicial or administrative decisions or case filings in matters aiming to reduce GHGs have concerned such plants. A concerted effort by the environmental community to fight the use of coal is behind much of this litigation. According to the Energy Information Administration, the combustion of coal is the largest source of GHG emissions in the United States; motor vehicles are a not-very-close second.

The Sierra Club has a Web site that tracks all the proposed …


Comment On Developing A Comprehensive Approach To Climate Change Mitigation Policy In The United States: Integrating Levels Of Government And Economic Sectors, Michael B. Gerrard Jan 2009

Comment On Developing A Comprehensive Approach To Climate Change Mitigation Policy In The United States: Integrating Levels Of Government And Economic Sectors, Michael B. Gerrard

Faculty Scholarship

The article by Thomas D. Peterson, Robert B. McKinstry Jr., and John C. Dernbach (PM&D) has two central insights: (1) Any serious national effort to control emissions of greenhouse gases (GHGs) must continue to leave important roles to the states; and (2) It would be a mistake to put too many eggs in the cap-and-trade basket. A portfolio approach that utilizes many different regulatory techniques is important.

I certainly agree with PM&D about these insights, and they are correct that much of the current Congressional debate has given too little attention to these considerations. However, I have serious reservations about …


Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund Jan 2009

Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund

Faculty Scholarship

Over the last fifteen years, the Supreme Court has formulated new constitutional principles to constrain punitive damages awards imposed by state courts, invoking its authority under the Due Process Clause of the Fourteenth Amendment. This intervention has been controversial from the start, generating dissents from several Justices asserting that the actions of the Court are unwarranted and amount to unjustified judicial activism. Over the ensuing years lower courts and commentators have criticized the Court’s prescription of procedural and substantive limitations, finding them to be vague and unnecessarily restrictive of state common law prerogatives. Some observers with an economic orientation have …


Taking Action In New York On Climate Change, Michael B. Gerrard, David Driesen, Veronica Eady Famira, J. Kevin Healy, Katrina Kuh, Edward Lloyd, Eileen Millett, David Paget, Virginia Robbins, Patricia Salkin, James Sevinsky, James Van Nostrand Jan 2009

Taking Action In New York On Climate Change, Michael B. Gerrard, David Driesen, Veronica Eady Famira, J. Kevin Healy, Katrina Kuh, Edward Lloyd, Eileen Millett, David Paget, Virginia Robbins, Patricia Salkin, James Sevinsky, James Van Nostrand

Faculty Scholarship

The New York State Bar Association (NYSBA) Task Force on Global Warming (the Task Force) has been convened by NYSBA President Bernice Leber to summarize New York’s existing laws and programs regarding climate change and to make specific proposals that the State can implement in a timely and cost-effective fashion to reduce greenhouse gas (GHG) emissions and to prepare for the impacts of climate change. New York has taken many steps to address climate change; however, there is much more that can be done. The Task Force has not attempted to comprehensively suggest every possible action, but rather has selected …


The Rule Of Law And The Exemption Strategy, Kent Greenawalt Jan 2009

The Rule Of Law And The Exemption Strategy, Kent Greenawalt

Faculty Scholarship

Do exemptions from ordinary legal requirements for religious individuals and groups contravene the rule of law? If they do only sometimes, rather than always or never, under what circumstances do they do so? This Article explores these intriguing questions, raised powerfully by Marci Hamilton's important and challenging book God vs. the Gavel.

I offer some general observations about the concept of the rule of law, sketch problems posed by religious exemptions, survey various accepted features of our legal order that may seem similarly in tension with the rule of law, and consider in detail the significance of certain kinds of …


Intervention To Stop Genocide And Mass Atrocities: International Norms And U.S. Policy, Matthew C. Waxman Jan 2009

Intervention To Stop Genocide And Mass Atrocities: International Norms And U.S. Policy, Matthew C. Waxman

Faculty Scholarship

The collective international failure to stop genocidal violence and resulting humanitarian catastrophe in Sudan prompts the familiar question of whether the United States or, more broadly, the international community has the political will and capabilities necessary to deter or stop mass atrocities. It is well understood that mobilizing domestic and international political support as well as leveraging diplomatic, economic, and maybe even military tools are necessary to stop mass atrocities, though they may not always be enough. Other studies have focused, therefore, on what steps the United States and its international partners could take to build capabilities of the sort …


Tiered Originality And The Dualism Of Copyright Incentives, Shyamkrishna Balganesh Jan 2009

Tiered Originality And The Dualism Of Copyright Incentives, Shyamkrishna Balganesh

Faculty Scholarship

In a a well argued and thought-provoking new article, Gideon Parchomovsky and Alex Stein attempt to give copyright’s requirement of originality real meaning, by connecting it to the system’s avowed institutional goals.1 To this end, they focus on disaggregating originality into three tiers and providing creative works within each tier with a different set of rights and liabilities. Parchomovsky and Stein are indeed
correct to lament the meaninglessness of originality under current copyright doctrine. Yet their proposal does not quite fully explore the incentive effects of differentiated originality, especially as between upstream and downstream creators. Nor does it tell us …


To And From The Community, Peter L. Strauss Jan 2009

To And From The Community, Peter L. Strauss

Faculty Scholarship

I am glad to have been asked to share with the readers of Mizan Law Review, the thoughts that occurred to me at the end of my two-week stay in Ethiopia. It is difficult to express thoughts upon impromptu invitation. On the other hand, conversations like the one I had when I was invited to express my thoughts unveil one’s inner voice which readily responds although words from the heart might lack the pattern and the roadmap of thoughts and memories polished through the mind.


What Has To Change For Forests To Be Saved? A Historical Example From The United States, Jedediah S. Purdy Jan 2009

What Has To Change For Forests To Be Saved? A Historical Example From The United States, Jedediah S. Purdy

Faculty Scholarship

This article looks at the conservation of American forests in the nineteenth and twentieth centuries to cast light on the prospects for global forest conservation in the twenty-first. At the beginning of the nineteenth century, Americans understood their forests as good only for cutting. By the end of the century a national scheme existed for comprehensive and permanent forest conservation. This new scheme became possible thanks to changes in scientific knowledge, the ideological self-image of the country, political institutions, and the imagination and moral commitments of citizens and social movements. A look at the changes that laid the foundations of …


A Few Questions About The Social-Obligation Norm, Jedediah S. Purdy Jan 2009

A Few Questions About The Social-Obligation Norm, Jedediah S. Purdy

Faculty Scholarship

I applaud Gregory Alexander for proposing an innovative view of property, one focused on the obligations of ownership. His project locates what I think of as the liberal aim of personal freedom (meaning both formal autonomy and real opportunity) within a social context of distributive choices and conceptions of mutual obligation. That is, he is asking what counts as a free society, and he is putting property regimes at the center of the answer. I want to set out some questions about where his project goes from here.


There Is No Single Field Of Law And Development, Katharina Pistor Jan 2009

There Is No Single Field Of Law And Development, Katharina Pistor

Faculty Scholarship

Let me begin – following Ohnesorge following Trubek and Santos – with the notion that the concepts of “law and development” and “rule of law” are closely intermingled with the process of legal reform in developing countries and the role foreign advisers and multilateral institutions play in that undertaking. Describing the “field” in this fashion reveals that the glue that holds together a set of disparate activities by disparate actors (for under what other circumstances do we assume common ground between family and securities lawyers, or professors and world bankers?) is a shared belief in the virtue of law.