Law Commons^™

Keynote: The Crisis And Criminal Justice, Bernard Harcourt

Faculty Scholarship

There has been a lot of recent debate over whether the economic crisis presents an opportunity to reduce prison populations and improve the state of criminal justice in this country. Some commentators suggest that the financial crisis has already triggered a move towards reducing the incarcerated population. Some claim that there is a new climate of bipartisanship on punishment. Kara Gotsch of the Sentencing Project, for example, suggests that we are now in a unique political climate embodied by the passage of the Second Chance Act under President George W. Bush – a climate that is substantially different than the …

Recoupment Under Dodd-Frank: Punishing Financial Executives And Perpetuating "Too Big To Fail", Joshua Mitts

Faculty Scholarship

In July 2011, the Federal Deposit Insurance Corporation (FDIC) promulgated new rules implementing Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act. These rules define a cause of action to recoup compensation paid to senior executives and directors of failed nonbank financial institutions placed into the FDIC's "orderly liquidation authority" receivership. An action for recoupment is based on a negligence theory of liability, but it does not require establishing that an executive's conduct caused the financial institution any harm. The rules presume liability merely for having held executive responsibility prior to the firm entering receivership. The executive …

The Law And Economics Of Blockholder Disclosure, Lucian A. Bebchuk, Robert J. Jackson Jr.

Faculty Scholarship

The Securities and Exchange Commission is currently considering a rulemaking petition that advocates tightening the rules under the Williams Act, which regulates the disclosure of large blocks of stock in public companies. In this Article, we explain why the Commission should not view the proposed tightening as a merely "technical" change needed to meet the objectives of the Williams Act, provide market transparency, or modernize its regulations. The drafters of the Williams Act made a conscious choice not to impose an inflexible 5% cap on pre-disclosure accumulations of shares to avoid deterring investors from accumulating large blocks of shares. We …

The Politics Of Incivility, Bernard Harcourt

Faculty Scholarship

The Flemish painter, Pieter Bruegel, portrayed in his artwork men relieving themselves, cripples begging, and peasants toiling – as well as butchery and the gallows. In his masterful work, The Civilizing Process, Norbert Elias showed how the "late medieval upper class" had not yet demanded, as later generations would, that "everything vulgar should be suppressed from life and therefore from pictures."

For centuries now, defining incivility has been intimately connected with social rank, class status, political hierarchy, and relations of power. The ability to identify and sanction incivility has been associated with positions of political privilege – and simultaneously …

Thirteenth Amendment Optimism, Jamal Greene

Faculty Scholarship

Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the Amendment's drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has supported constitutional rights to abortion and health care and constitutional powers to prohibit hate speech and domestic violence, among other things. This Essay examines the practical utility of Thirteenth Amendment optimism in the face of dim prospects for adaption by courts. The Essay argues that Thirteenth Amendment optimism is most valuable, both historically and today, as a means of motivating the political process …

Contextualizing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon

Faculty Scholarship

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes – institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the wellstudied agency and trade association examples. The newer regimes mix …

To Tax, To Spend, To Regulate, Gillian E. Metzger

Faculty Scholarship

Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. By contrast, the ACA's Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called "individual mandate") as the conscription of the healthy to subsidize the sick. This conflict over the federal government's proper role is, of course, not new; it has played out repeatedly …

Where Is The "Quality Movement" In Law Practice?, William H. Simon

Faculty Scholarship

The "Quality Movement" that originated in industrial production and has since influenced the professions prescribes standardized work, root cause analysis of errors, peer review, and performance measurement. While these reforms have transformed medicine and some other professions, their influence has lagged in the legal profession. This Essay reviews the limited progress of the reforms in law and assesses the cultural, institutional, and doctrinal obstacles they face.

Super Pacs, Richard Briffault

Faculty Scholarship

The most striking campaign finance development since the Supreme Court's decision in Citizens United v. FEC in January 2010 has not been an upsurge in corporate and union spending, as might have been expected from a decision invalidating the decades-old laws barring such expenditures. Instead, federal election campaigns have been marked by the emergence of an entirely new campaign vehicle, which uses – but is not primarily dependent on – corporate or union funds, and which threatens to upend the federal campaign regulatory regime in place since 1974.

The 2010 election cycle witnessed the birth of the "Super PAC" – …

The Feminist Academic's Challenge To Legal Education: Creating Sites For Change, Ann Shalleck

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Herding Cats: Role Ambiguity, Governance, And Law School Clinical Programs, Binny Miller

Scholarly Articles in Law Reviews & Journals

No abstract provided.

How Well Does The G20 Reflect African Interests And Priorities?: Some Thoughts Following The Los Cabos, Mexico Summit, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

The leaders of the G20 countries have now held seven summits -- enough to begin critically evaluating how well the G20 serves the interest of specific sub-parts of the international community. The purpose of this paper is to assess how well the G20 responds to African interests. It is divided into three parts. The first is a brief description of the most recent summit, held on June 18-19, 2012 in Los Cabos, Mexico. The second part is a brief discussion of the criteria that will be used in this evaluation. The third part is an assessment of the G20 against …

Gazing Into The Future: The 100-Year Legacy Of Justice William J. Brennan, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

Introduction: How should Justice William J. Brennan, Jr., be remembered in 2056, one hundred years after he joined the United States Supreme Court, or in 2090, one hundred years after he left it? There is no set convention for how we evaluate the success or failure, the greatness or mediocrity, of our Supreme Court Justices. This is the case even in their lifetimes, let alone decades later. Yet there are some constants in Brennan's legendary judicial career that may guide the way to evaluating his legacy.

Heroes Of The Struggle For Voting Rights, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Eparpillement Aux Quatre Vents: La Fragmentation Du Droit Du Sport, Giovanni Distefano, Petros C. Mavroidis

Faculty Scholarship

Scattering to the Four Winds: The Fragmentation of Sports Law

Sports Law is characterized by a multiplicity of sources: from the outset, law-making function was mainly carried out by different and competent sports associations (both national and international). Two major events have wreaked havoc: on one side, the ever-increasing professionalization of sports business has given birth to the outcrop of private associations – active in a sort of grey and undefined area – torn between public authority ans free market; on the other side, international federations have been called upon to manage those same associations. Lack of institutional and substantive …

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …

The Legal And Economic Principles Of World Trade Law: National Treatment, Gene M. Grossman, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

The primary objective of most trade agreements is to restrain members' use of trade policies for protectionist purposes. But it would be pointless to restrict the application of border instruments without regulating the possible use of domestic policies for protectionist purpose. To this end, most agreements include an obligation for National Treatment (NT) of foreign products. The NT provision in the GATT appears in Art. III, which applies to most government actions that have impact trade. It requires that imported products be treated as favorably by domestic policy as similar, indigenous products. This study offers suggestions based on legal and …

The Dialogue Approach To Miranda Warnings And Waiver, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

The central tension in any disputed Miranda waiver case is that the evaluation of a suspect’s knowing, intelligent, and voluntary waiver is conducted months after the relevant time of the interrogation. The tension exists because current Miranda practice fails to develop an adequate record of a suspect’s knowledge and understanding at the time of the waiver. Current Miranda practice involves essentially a one-way explanation of information. The police officer conveys Miranda rights to the suspect through a formalized recitation of the warnings. Usually this is done through a reading and signing of a pre-printed Miranda waiver card. As a result, …

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …

Fantasies And Illusions: On Liberty, Order, And Free Market, Bernard E. Harcourt

Faculty Scholarship

Critical thinkers have used various terms to describe the collective imaginary that has real effects on individuals, society, and politics. Freud used the term “einer Illusion” to characterize religious belief in his work, The Future of an Illusion, though many others in the psychoanalytic tradition would turn to the notion of fantasy. Marx sometimes used the term illusion and he notoriously deployed the optical illusion and the phantasmagoria in his famous discussion of commodity fetishism. (And Marx, of course, is the father of Ideologiekritic). Foucault at times used the language of fantasy and phantasms, in an early period deployed the …

"Bad Juror" Lists And The Prosecutor's Duty To Disclose, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Prosecutors sometimes use what are known as "bad juror" lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant's right to be tried by a jury of his or her peers, but it also violates potential jurors' rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts. This Article addresses the prosecutor's duty to disclose bad-juror lists. It reviews the federal …

Updating Disclosure For The New Era Of Independent Spending, Richard Briffault

Faculty Scholarship

One of the most striking developments in recent elections has been the upsurge in spending by independent committees, particularly Super PACs and 501(c) nonprofit corporations, that are not technically affiliated with specific candidates or parties but that frequently work to promote or oppose specific candidates or parties. In many elections, these committees are de facto surrogates for the candidates they are aiding. Although our disclosure laws are reasonably effective at obtaining the disclosure of the identities of donors to candidates and parties, they fail to provide effective disclosure of the identities of the donors to independent committees. The Citizens United …

Law And Ethics For Robot Soldiers, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Lethal autonomous machines will inevitably enter the future battlefield – but they will do so incrementally, one small step at a time. The combination of inevitable and incremental development raises not only complex strategic and operational questions but also profound legal and ethical ones. The inevitability of these technologies comes from both supply-side and demand-side factors. Advances in sensor and computational technologies will supply “smarter” machines that can be programmed to kill or destroy, while the increasing tempo of military operations and political pressures to protect one’s own personnel and civilian persons and property will demand continuing research, development, and …

Disabling Attitudes: U.S. Disability Law And The Ada Amendments Act, Elizabeth F. Emens

Faculty Scholarship

This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts’ narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ADAAA …

Embracing Administrative Common Law, Gillian E. Metzger

Faculty Scholarship

This Foreword begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. Although governing statutes exert some constraining force on judicial creativity, the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged and often condemned by courts.

Turning from descriptive to more normative, …

Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Jane C. Ginsburg, Eva E. Subotnik

Faculty Scholarship

A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).

The Case For Original Intent, Jamal Greene

Faculty Scholarship

This Article seeks to situate the constitutional culture's heavy reliance on the Convention debates within an academic environment that is generally hostile to original intent arguments. The Article argues that intentionalist-friendly sources like the Convention records and The Federalist remain important not because they supply evidence of original meaning but rather because the practice of advancing historical arguments is best understood as a rhetorical exercise that derives persuasive authority from the heroic character of the Founding generation. This exercise fits within a long tradition of originalist argument and need not be abandoned in the quest for a more perfect originalism.

The Measure Of A Mac: A Quasi-Experimental Protocol For Tokenizing Force Majeure Clauses In M&A; Agreements, Eric L. Talley, Drew O'Kane

Faculty Scholarship

This paper develops a protocol for using a familiar data set on force majeure provisions in corporate acquisitions agreements to tokenize and calibrate a machine-learning algorithm of textual analysis. Our protocol, built on regular expression (RE) and latent semantic analysis (LSA) approaches, serves to replicate, correct, and extend the hand-coded data. Our preliminary results indicate that both approaches perform well, though a hybridized approach improves predictive power further. Monte Carlo simulations suggest that our results are generally robust to out-of-sample predictions. We conclude that similar approaches could be used more broadly in empirical legal scholarship, especially including in business law.

Invisible Cities In Europe, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Crime And Enforcement In Immigrant Neighborhoods: Evidence From New York City, Garth Davies, Jeffrey Fagan

Faculty Scholarship

Immigration and crime have received much popular and political attention in the past decade, and have been a focus of episodic social attention for much of the history of the U.S. Recent policy and legal discourse suggests that the stigmatic link between immigrants and crime has endured, even in the face of evidence to the contrary. This study addresses the relationship between immigration and crime in urban settings, focusing on areal units where immigrants tend to cluster spatially as well as socially. We ask whether immigration creates risks or benefits for neighborhoods in terms of lower crime rates. The question …