Law Commons^™

A Convenient Constitution? Extraterritoriality After Boumediene, Christina Duffy Ponsa-Kraus

Faculty Scholarship

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the "war on terror." In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the "impracticable and anomalous" test, also known as the 'functional" approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority.

This Article argues that the Boumediene Court was right …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.

Selling Originalism, Jamal Greene

Faculty Scholarship

Justice Scalia has described an originalist approach to interpretation as a prerequisite to faithful application of a written Constitution. If, says he, constitutional judicial review is implicit in the notion that the Constitution is paramount law, as has been settled in this country at least since Marbury v. Madison, then that review must be guided by the ordinary tools of legislative interpretation. In a democracy, serious legislative interpretation requires that judges keep faith with the meaning of the text as understood at the time of enactment, not as desired by those judges or by anyone else who does not, …

Ascertaining The Parties' Intentions In Arbitral Design, George A. Bermann

Faculty Scholarship

Supreme Court case law teaches us that the federal interest in arbitration does not consist of enforcing agreements to arbitrate according to some sort of abstract or ideal arbitral model, but rather according to the particular arbitral model upon which the parties had agreed. This body of law is driven by the same notions of party autonomy that underlie the law of arbitration generally. That parties may agree to forego access to national courts in favor of arbitration is an initial manifestation of that attitude. By logical extension, the parties also enjoy extraordinary latitude in determining the features that "their" …

Civil Liability And Mandatory Disclosure, Merritt B. Fox

Faculty Scholarship

This Article explores the efficient design of civil liability for mandatory securities disclosure violations by established issuers. An issuer not publicly offering securities at the time of a violation should have no liability. Its annual filings should be signed by an external certifier – an investment bank or other well-capitalized entity with financial expertise. If the filing contains a material misstatement and the certifier fails to do due diligence, the certifier should face measured liability. Officers and directors should face similar liability, capped relative to their compensation but with no indemnification or insurance allowed. Damages should be payable to the …

In (Partial) Defense Of Strict Liability In Contract, Robert E. Scott

Faculty Scholarship

Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive arguments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is liable to the promisee for breach, and that liability is unaffected by the promisor's exercise of due care or failure to take efficient precautions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take cost-effective precautions …

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Faculty Scholarship

In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status. The bill generated modest media attention, but little controversy; it passed unanimously in both houses of the legislature and was signed into law by the governor.

This mundane story of the legislative process in action stands in sharp contrast to the political tale of …

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.

Greenhouse Gases: Emerging Standards For Impact Review, Michael B. Gerrard

Faculty Scholarship

Numerous federal and state judicial decisions have established that environmental impact statements (EISs) under the National Environmental Policy Act (NEPA) and its state equivalents should examine the impact of proposed projects on emissions of greenhouse gases (GHG), the principal anthropogenic cause of climate change. Administrative agencies and court settlements are now establishing the guidelines for the conduct of these examinations.

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 …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

Decisional Dignity: Teenage Abortion, Bypass Hearings, And The Misuse Of Law, Carol Sanger

Faculty Scholarship

How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wadeno longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health …

Optimization And Its Discontents In Regulatory Design: Bank Regulation As An Example, William H. Simon

Faculty Scholarship

Economists and economically-trained lawyers tend to speak about regulation from a perspective organized around the basic norm of optimization. By contrast, an important managerial literature espouses a perspective organized around the basic norm of reliability. The perspectives are not logically inconsistent, but the economist’s view sometimes leads in practice to a preoccupation with decisional simplicity and cost minimization at the expense of complex judgment and learning. Drawing on a literature often ignored by economists and lawyers, I elaborate the contrast between the optimization and reliability perspectives. I then show how it illuminates current discussions of the reform of bank regulation.

Police And National Security: American Local Law Enforcement And Counter-Terrorism After 9/11, Matthew C. Waxman

Faculty Scholarship

This article examines three national security law challenges resulting from greater involvement of state and local police agencies in protecting national security, especially in combating terrorism: organizational challenges, accountability challenges, and institutional tensions with traditional local police functions. Each threatens the balance of security and civil liberties.

The Devil Made Me Do It: The Corporate Purchase Of Insurance, Victor P. Goldberg

Faculty Scholarship

Despite the fact that public corporations ought to be risk neutral, they often carry insurance. This note first considers why insurance (or more precisely, the package of services provided by insurance companies) might create value, regardless of the risk preferences of managers, shareholders, or other corporate stakeholders. One motive is that their contractual counterparties – buyers, lessors, and lenders – require that they carry insurance. Three explanations for why the requirement might be value enhancing are proposed.

Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss

Faculty Scholarship

In the wake of the Enron and WorldCom accounting scandals, Congress created the Public Company Accounting Oversight Board (“PCAOB”) under the aegis of the Securities and Exchange Commission (“SEC”), with President Bush’s support. Its purpose was to replace deficient accounting industry self-regulation with effective external regulation. The choices it made in doing so engendered passionate arguments about constitutionally necessary presidential authority and separation of powers. These divided the D.C. Circuit 2-1 and will be rehearsed before the Supreme Court in the coming weeks. President Bush’s administration defended those choices; Judge Rogers, writing for the majority, found no valid constitutional objection …

The "Accidental Procreation" Argument For Withholding Legal Recognition For Same-Sex Relationships, Edward D. Stein

Articles

This article examines “the accidental procreation argument,” an argument against same-sex marriage that still has some traction in United States appellate courts. The accidental procreation argument is meant to take the place of one of the central arguments made by states — and almost universally accepted by courts — in the first batch of cases in the United States about same-sex marriage. That original procreation-based argument — now widely acknowledged to be inadequate — posited that marriage is crucially related to procreation; therefore, since same-sex couples cannot procreate, same-sex couples should not be allowed to marry. The accidental procreation argument …

Constitution On Ice: A Report On Immigration Home Raid Operations, Bess Chiu, Lynly Egyes, Peter L. Markowitz, Jaya Vasandani

Articles

No abstract provided.

Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones

Faculty Scholarship

Forty years ago, at a time when the media were experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical information is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change—albeit on a different trajectory—as …

Medellin, The Alien Tort Statute, And The Domestic Status Of International Law, David H. Moore

Faculty Scholarship

No abstract provided.

Law(Makers) Of The Land: The Doctrine Of Treaty Non-Self-Execution, David H. Moore

Faculty Scholarship

No abstract provided.

Reshaping The Common Good In Times Of Public Health Emergencies: Validating Medical Triage, George P. Smith Ii

Scholarly Articles

Public health ethics require individuals who are inherently at risk for transmitting communicable disease to be subjected, oftentimes, to isolation, quarantine, or compulsory vaccination - all undertaken, as such, to protect the common good and thereby secure the public-at-law for exposure to the spread of an infectious disease.

This article tests the extent to which public health emergencies necessitate a reinterpretation or reshaping of the common good and proceeds to analyze the extent to which the medical principle of triage is a relevant construct for allocating scarce medical resources during contemporary public health emergencies. The article proceeds to test the …

The Elderly And Health Care Rationing, George P. Smith Ii

Scholarly Articles

This Monograph derives from research undertaken during my appointment as a Visiting Scholar at The Poynter Center for The Study of Ethics and American Institutions, Indiana University, Bloomington in July-August, 2000. The thesis of this Monograph is that before contemporary society can confront the issue of health care rationing for the elderly, it must seek to integrate the disciplines of moral and ethical reasoning with the qualitative formulations of needs and resources. Until such a point is reached, however, the greatest danger to avoid is the perpetuation of non-decisions regarding health care treatment. Such "decisions" all too frequently result in …

The Flawed Nature Of The False Marking Statute, Elizabeth I. Winston

Scholarly Articles

In 2005, the United States Court of Appeals for the Federal Circuit rendered a decision on an “issue of first impression” interpreting a one hundred sixty-three year old provision of the United States Code - the “false marking” statute embodied in 35 U.S.C. § 292. It is false marking to mark as patented an unpatented article if done with the intent to deceive the public and, as such, is a fineable offense. The false marking statute remains one of only a handful of qui tam actions left intact from a rich history of varied incentives provided by the government for …

Evangelicals And Jews In Common Cause, Marshall J. Breger

Scholarly Articles

Responding to a recent symposium on Rabbi Joseph Soloveitchik's 1964 article on the propriety of Christian-Jewish dialogue, this essay begins by assessing several arguments put forth by Soloveitchik. These include the incommensurability of religious faith, the risks interreligious dialogue presents to the Jewish minority, the dangers of syncretism, and the ability to separate neatly the sacred and the profane. The article then proceeds to discuss the nature of Catholic-Jewish today, and concludes with thoughts about the future of Christian and Jewish interaction.

Learning Neuroscience The Hard Way: The Terri Schiavo Case And The Ethics Of Effective Representation, Robert A. Destro

Scholarly Articles

Part I of this article looks at the three main "narratives" that are commonly employed to describe the Schiavo case, and it recounts the basic facts concerning Terri Schiavo's brain injury and the early, but quickly-abandoned, attempt at rehabilitation. Part II is an examination of how the demise of one of the most profoundly harmful dogmas in the history of medicine-the theory that the brain is "hard-wired" and that no amount of rehabilitation can cause the brain to rewire itself-occurred too late in the litigation for the judges or advocates in either Schiavo or Englaro to understand that Terri and …

The Third Generation Of Indigent Defense Litigation, Cara H. Drinan

Scholarly Articles

For years, scholars have documented the national crisis in indigent defense and its many tragic implications, and yet the crisis persists. Traditionally, the appellate and political processes were the exclusive avenues for indigent defense reform, and each suffered from critical infirmities. By the 1970's, individuals and groups began to seek prospective judicial reform of indigent defense systems. Widely used in other arenas, systemic suits based on the Sixth Amendment have been few in number and, at least in their early form, relatively unsuccessful. Other scholars have provided a descriptive account of structural litigation to improve indigent defense, and this article …

Catholic Social Teaching, The Rule Of Law, And Copyright Protection, Susanna Frederick Fischer

Scholarly Articles

The rule of law is currently under grave threat in cyberspace. Even as copyright laws have been strengthened in many ways in response to new digital technologies, these laws are widely disrespected and cannot be effectively enforced against all those who willfully flout them. The legislative response has been to strengthen copyright laws more and more, including expanding copyrightable subject matter, giving copyright owners new rights, and lengthening the copyright term. One example is the Copyright Term Extension Act of 1998. This amendment to federal copyright law retroactively extended the duration of copyright protection by twenty years. The judicial response …

Introduction: Intellectual Property In The Age Of The Internet, Susanna Frederick Fischer

Scholarly Articles

No abstract provided.

Confrontation, Forfeiture, And Giles V. California: An Interim User’S Guide, Clifford S. Fishman

Scholarly Articles

This Article examines the implications of Giles v. California. It begins in Part II by examining the Confrontation Clause before Giles, and explains how Crawford v. Washington upended the Clause's prior interpretation in Ohio v. Roberts, by excluding all "testimonial" statements, however "trustworthy" a court might consider them to be. It then provides a brief explanation of the forfeiture doctrine and its endorsement in Crawford. Part III consists of a detailed examination and critique of the Court's resolution of the central issue in Giles: that the forfeiture doctrine applies only when the prosecution can show that the defendant killed …