Showing papers in "Stanford Law Review in 1996"

Law and Borders--The Rise of Law in Cyberspace

Abstract: Global computer-based communications cut across territorial borders, creating a new realm of human activity and undermining the feasibility--and legitimacy--of applying laws based on geographic boundaries. While these electronic communications play havoc with geographic boundaries, a new boundary, made up of the screens and passwords that separate the virtual world from the real world of atoms, emerges. This new boundary defines a distinct Cyberspace that needs and can create new law and legal institutions of its own. Territorially-based law-making and law-enforcing authorities find this new environment deeply threatening. But established territorial authorities may yet learn to defer to the self-regulatory efforts of Cyberspace participants who care most deeply about this new digital trade in ideas, information, and services. Separated from doctrine tied to territorial jurisdictions, new rules will emerge, in a variety of on-line spaces, to govern a wide range of new phenomena that have no clear parallel in the nonvirtual world. These new rules will play the role of law by defining legal personhood and property, resolving disputes, and crystallizing a collective conversation about core values.

Deficit Reduction Through Diversity: How Affirmative Action at the FCC Increased Auction Competition

Abstract: INTRODUCTION 2 I. THEORY 4 A. Set-Asides Can Enhance Intragroup Competition Among Strong Bidders 6 B. Bidding Credits Can Create Effective Set-Asides 7 C. Bidding Credits Can Create Intergroup Competition 7 D. Affirmative Action Can Increase Expected Revenue When the Government Is Imperfectly Informed About Bidder Valuations 7 E. Affirmative Action Can Destabilize Tacit Collusion 9 II. EMPIRICISM 9 A. Describing the Licenses and the Auction Rules 10 B. The Impact of Affirmative Action 14 1. Comparing the nationwide and regional results 14 2. The impact of designated crossover bidding 17 3. The impact of the set-aside licenses. 22 C. Alternative Hypotheses 23 1. Hiding in the grass 24 2. The designated bidders would have bid anyway 25 3. Affirmative action might have chilled non-designated bidder participation 26 D. Strategic Perversities: Bidding Above Atomistic Reservation Prices 26 1. Risk of partial aggregation. 26 2. Raising rivals’ costs and predatory strategies. 27 3. Reduced retail competition. 28 III. APPLICATIONS TO GOVERNMENT PROCUREMENT AND PRIVATE EMPLOYMENT 29 A. Government Procurement 29 B. Private Employment 31 IV. LEGAL IMPLICATIONS 32 A. Public Affirmative Action 32 1. Revenue enhancement is constitutionally insufficient. 32 2. Did the FCC’s rules enhance minority or female control of the airwaves ? 33 3. Affirmative action costs the government less than is commonly assumed. 34 B. Private Affirmative Action May Deserve Higher Scrutiny 35 CONCLUSION 36 APPENDIX 37

Offer, Acceptance, and Efficient Reliance

Abstract: In this article, Professor Craswell explores efficient reliance as an implicit economic rationale underlying courts' decisions in contract formation cases. Contracting parties often fail to express their intentions clearly and courts must later decide what the parties would have wanted ex ante. When negotiations fail, one party (S) may deny ever making a commitment, while the other party (B) may claim to have relied on the first party's statements or conduct. Professor Craswell observes that courts often find a binding commitment by S when reliance by B would have been efficient. After explaining when reliance is efficient, and why the nonrelying party might prefer it, Professor Craswell shows that courts appear to apply an efficient reliance rationale under a variety of common law doctrines. But because the question of whether B's reliance was efficient is highly fact specific, Professor Craswell concludes that bright line rules would not, as a general matter, guarantee a more efficient result.

Lockups and the Market for Corporate Control

Abstract: This article analyzes the effect of lockups on the market for corporate control. Prior scholarship on lockups has argued that lockups are generally ineffective in allowing target managers to influence who acquires a target firm. Accordingly, scholars who have taken this position have advocated leniency in judicial review of lockups. This article first demonstrates that lockups can affect the outcome of bidding contests. It then analyzes the effect of lockups on the operation of the market for corporate control and shows that judicial leniency toward lockups would both weaken the disciplinary influence of the takeover threat and reduce the number of value-enhancing acquisitions that occur. It concludes by discussing the proper legal treatment of lockups from the perspectives of shareholder wealth maximization and social wealth maximization.

Reasonableness and Rationality in Negligence Theory

Abstract: More than twenty years ago, George Fletcher showed that the competing ideals offairness and utility battle over the interpretation and justification of tort doctrine This article argues that the very concept of negligence (or reasonable care) is itself a front in that struggle Law and economics scholars such as Robert Cooter, Thomas Ulen, and Richard Posner have extended the utilitarian tradition by developing an interpretation of tort reasonableness as individual economic rationality writ large Drawing both on tort doctrine and on social contract theory, Professor Keating argues that tort doctrine seeks, quite rightly, to specify the terms of reasonable risk imposition; not the terms of rational risk imposition Social contract theory takes reasonableness to differ from rationality in that the canons of reasonableness apply to a plurality of free and equal persons with diverse aims and aspirations who are concerned to advance those ends on fair terms, whereas the canons of rationality apply to single actors, or to associations whose members owe allegiance to a shared final end Professor Keating develops a social contract conception of due care, and argues that this conception fits the doctrine and rhetoric of due care law better than those of Cooter, Ulen, and Posner

The Distribution of Wealth, Sovereignty, and Culture Through Indian Gaming

Abstract: Postmodern, Traditional, and Culture as Negotiation-and concludes that, by not considering the cultural choices it creates, the IGRA fails to provide an effective means of strengthening tribal sovereignty and economic development. In particular, Ms. Mezey stresses the IGRA's ironic effect of forcing tribes to surrender some measure of sovereignty in order to exercise the federal gaming right. She also suggests that those tribes that reap the greatest benefits from the IGRA may suffer least from the problems the statute sought to eliminate. I. POSTMODERN CONSUMERISM AND GAMING The Rabbi told my great great grandfather that if he wanted to cure his gambling addiction, he would have to move from Miskolc, Hungary to New York City. The move saved him from the pogroms and the Nazis, but needless to say, it did nothing for his gambling problem.

Bringing Foucault into Law and Law into Foucault

Abstract: The announced purpose of Alan Hunt and Gary Wickham 's book, Foucault and Law, is "to demonstrate the pertinence of [Michel] Foucault for contemporary issues in legal studies." In this review essay, Hugh Baxter acknowledges the important contributions Hunt and Wickham have made, both in introducing basic Foucaultian concepts to a legal academic audience, and in identifying the defects in Foucault's explicit discussions of law. Yet, Baxter contends, the authors turn too quickly from Foucault's work toward their own new research project, the "sociology of law as governance. " Rather than constructing a new subdiscipline of the sociology of law, Baxter argues, the authors might have considered more directly how Foucault's work could illuminate issues in contemporary legal studies. Through a critical examination of some exemplary appropriations of Foucault, Baxter suggests the possibilities and limits of Foucault's usefulness for legal scholarship.

The Legal Ways of Seduction

Abstract: Rape, coerced sex, and abandonment when pregnant are quintessentially gendered grievances that generations of young women have experienced. The law, however, has not always responded to these grievances by providing a tradition by which women could receive monetary damages for these kinds of sexual predation. This article situates the nineteenth century American seduction cases at the cusp of the transition from violent retributive sanctions for sexual assault to civil actions for money damages. The seduction cases tell the story of the move from patriarchal violence to "rationally" created rules of law. In the nineteenth century, courts providedfathers with a cause of action when their daughters were subjected to sexual coercion while they worked outside the confines of their father's home. As the state assumed more of a monopoly on violence in these situations, it replaced the traditional domination exercised by the patriarch by copying its distributional pattern rather than by recognizing new rights in the parties most harmed. The extension of rights under this ancient tort was, in fact, antithetical to single women's independence because it reinforced the patriarchal order and defeated acts of emancipation on the woman's part. In a study of more than two hundred cases, Professor VanderVelde first makes the case that there was no tradition of monetary redress for one of a woman's greatest fears, sexual assault. The article demonstrates the doctrines and cultural precepts which inhibited the development of an action that the woman herself could bring. Second, the article examines the terms on which the tort of seduction operated. Finally, the article demonstrates how a minor change in standing adopted virtually without notice changed the cast of seduction disputes in some states. Through this means in some eleven states, servant girls at last were able to sue masters who coerced them into engaging in sex.

Liberalism, Autonomy, and Moral Conflict

Abstract: In this article, Professor Gardbaum presents an account of liberalism in which a particular conception of the ideal of autonomy is an essential and constitutive value. This account, which distinguishes between the liberal state's relative indifference as to which substantial ways of life its citizens choose to adopt and its promotion of choice as the basis on which they are adopted, provides the basis for Professor Gardbaum's distinctively liberal critique of political liberalism and its requirement of state impartiality toward its citizens' conflicting ideals, including the ideal of autonomy. He argues that by taking the central task of political theory to be that of accommodating the "problem" of moral conflict in society, political liberalism misconceives the essential nature of the liberal enterprise. Such dissensus should be understood less as the problem to which liberalism is the solution than as the characteristic product of the liberal commitment to the ideal of autonomy. Accordingly, he contends, political liberalism s attempt to justify liberal political principles without relying on controversial ideals fails. Professor Gardbaum claims that freeing the liberal state from the false constraint of impartiality permits it to take its duty to enhance choice seriously, which means that autonomy should be promoted as a substantive rather than only as a formal value.

Stretching the Margins: The Geographic Nexus in Environmental Law

Abstract: In environmental law, a recurring issue involves the geographic nexus-the connection required to give an individual or government a legitimate interest in an environmental problem in a given locale. The nexus issue arises in a broad range of contexts, from standing decisions such as Defenders and National Wildlife Federation, to Dormant Commerce Clause decisions and their relatives in GATT and ECJ jurisprudence. In Part I, the author explores the use of the geographic nexus to define when individuals have suffered cognizable environmental injuries. He then explores, in Part II, what type of nexus a government must show as a basis for environmental regulation. He argues in Part III that we need a pragmatic, flexible approach to the geographical nexus. Globalism and localism, the two leading perspectives on the geographic nexus, are both too inflexible. Localism places talismanic weight on physical location while globalism attempts to erase geography. Each perspective is insufficiently attentive to the values represented by the other. We must expect the geographic nexus to evolve along with changing concepts of sovereignty and developing perceptions of environmental issues. In applying such an evolutionary approach, tribunals should be receptive to signals from the international community, or in the United States, from Congress, regarding the legitimacy of transboundary regulatory interests.

The Fourth Amendment during the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory

Abstract: In this article, Professor Morgan Cloud proposes a surprising remedy for a Fourth Amendment jurisprudence he criticizes as lacking a unifying theory and failing to preserve the rights guaranteed by the Amendment. Professor Cloud's solution is a return to the theories espoused by the Supreme Court during the infamous Lochner era of the early twentieth century. He calls for a merging of the formalist and pragmatist theories of that period into an interpretive theory of the Fourth Amendment and suggests a rededication to the Amendment's Warrant Clause. Such a theory avoids the pitfalls of literalism and judicially determined social policy, while protecting the basic purposes of the Amendment to protect individual liberty, privacy, and property and to prevent unjustified government intrusions.

Authorial Cartographies: Mapping Proprietary Borders in a Less-Than-Brave New World

Abstract: "They're burning Bambi in Bangkok ... and Disney executives couldn't be happier."' This caption appeared beneath a photograph of a Thai police officer dropping T-shirts into the flames of a fire prepared to consume "counterfeit" Disney goods. An "amusing" story for a North American public, perhaps-but one that also served to naturalize, once again, the common sense of American cultural and economic hegemony. Meanwhile, outside a stadium in a U.S. city, indigenous peoples protest the stereotypical Indian caricatures used to market a sports team-ritually burning merchandise bearing the offensive stereotypes. Owners of the team's trademark denounce native protests as an interference with their freedom of speech; native peoples claim that they are silenced by such signs; stereotypes deprive them of political voice.2 Both of these examples, I would suggest, challenge and complicate traditional liberal mappings of public and private, speech and property,3 but they do so in a way that suggests

Gay Rights, Thick and Thin

Abstract: In this article, Professor Massaro observes that constitutional bases for gay rights have rested primarily on "thick" doctrine-First Amendment, privacy, and equal protection caselaw-in an effort to secure strict scrutiny of antigay measures Although attractive in some respects, these arguments pose significant risks of double-binds and boomerangs in the long run, even if they yield short-term legal victories Moreover, "thick" arguments are sufficiently porous to support judges' chilly responses to gay rights-responses that cannot be explained by inexorable doctrinal logic, but instead arise from hostility toward homosexuality in particular, and ignorance about sexuality in general Thus, Professor Massaro argues for invoking "thin" doctrine-rational basis analysisto expose these underlying factors "Thin" doctrine directs judicial attention away from distracting doctrinal complexities and toward the central issue: "What is wrong with homosexuality?" Thin doctrine answers this question by posing fewer risks of double-binds, avoiding attempts to define homosexuality, and requiring minimal revision of the existing doctrinal structure Finally, responses to this question are framed by consulting emerging interdisciplinary work that grapples with the unreason of Bowers v Hardwick The recent decision of Evans v Romer is an important illustration of how thin doctrine can succeed where more ornate legal theories fail

The right to choose how to die: a constitutional analysis of state laws prohibiting physician-assisted suicide.

Abstract: Physician-assisted suicide (PAE) is an emotionally charged issue that state legislators struggle with more and more each year. In this note, David Sloss examines whether the right to voluntary PAE is protected by the Due Process Clause of the Fourteenth Amendment. Mr. Sloss argues that all competent, terminally ill patients have a fundamental right to die with dignity. He concludes that no state should place a substantial obstacle, or undue burden, in the path of a competent patient with an objectively rational desire to die.

Coming soon to the "genetic supermarket" near you.

Abstract: Recent medical studies have indicated that synthesized human growth hormone (hGH) may cosmetically enhance short, but otherwise perfectly healthy, individuals by adding inches to their final predicted height. In this note, Curtis Kin examines the legal and ethical implications of such a discovery, arguing that nontherapeutic hGH treatment is likely the first of many biotechnology and gene therapy enhancements that may be available to the public in a "genetic supermarket" of enhancement products. Mr. Kin finds that the current regulatory framework for biotechnology and gene therapy inadequately regulates unapproved uses of hGH and fails to address properly its implications for a genetic "race to perfection." He proposes changes to the current regulatory framework that will enforce a strict distinction between therapeutic and enhancement applications of biotechnology and gene therapy. These changes in the law, Mr. Kin reasons, will help to solve the social and ethical problems posed by these emerging developments in technology.