Showing papers in "Yale Law Journal in 1997"
915 citations
TL;DR: The European Court of Justice (ECJ) as discussed by the authors is one of the most successful supranational tribunals in the world, which has been used to hear claims brought by private parties directly against national governments or against other private parties.
Abstract: Supranational adjudication in Europe is a remarkable and surprising success. Europe's two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present.Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power to hear claims brought by private parties directly against national governments or against other private parties. Such "supranational" jurisdiction has allowed the European courts to penetrate the surface of the state, to forge direct relationships not only with individual citizens but also with distinct government institutions such as national courts. Over time, this penetration and the deepening relationships between supranational jurists and domestic legal actors have led to the evolution of a "community of law," a web of nominally apolitical relations among subnational and supranational legal actors.The simple provision of supranational jurisdiction, however, is not a guarantee of effective adjudication. Drawing on the observations of scholars, practitioners, and judges, Professors Helfer and Slaughter develop a "checklist" of factors that enhance the effectiveness of supranational adjudication. They distinguish among those factors that are within the control of member states; those that are within the control of the judges themselves; and those that may be beyond the control of either states or judges. Isolating the factors in this way provides both a rough metric for evaluating the effectiveness of other supranational tribunals and a potential set of prescriptions for judges on those tribunals seeking to enhance their institutions' effectiveness.After developing the checklist, Professors Helfer and Slaughter use it to analyze the United Nations Human Rights Committee (UNHRC). Although the UNHRC was established expressly as a committee of experts rather than a court, analysis of its recent practice reveals that it is becoming increasingly "court-like." Moreover, within the constraints imposed by severely limited resources, UNHRC members are independently following many of the checklist prescriptions for increased effectiveness. The next step is for the organization to enter into a sustained dialogue with its European counterparts, harmonizing its decisions with theirs in some areas while consciously preserving its own distinctive jurisprudence in others. Structured and regular interaction between these tribunals would add additional voices to an emerging transjudicial conversation, potentially laying the foundation for a global community of law.
275 citations
TL;DR: In this paper, the authors discuss the role of social construction and international law in post-Communist transition, and propose a rule of law as antipolitics in the post-war transition.
Abstract: I. THE RULE OF LAW IN TRANSITION ....................... 2016 A. The Rule-of-Law Dilemma: The Postwar Transition ....... 2018 B. Shifting Visions of Legality: Post-Communist Transitions . .. 2022 C. Transitional Constructions of Legality ................ 2026 1. The Role of Social Construction .................. 2026 2. The Role of International Law ................... 2028 3. The Rule of Law as Antipolitics .................. 2029 D. The Transitional Judiciary ......................... 2030 E. The Transformative Adjudicative Domain .............. 2034
182 citations
TL;DR: The distinction between property rules and liability rules was introduced by Calabresi and Melamed as discussed by the authors, who pointed out the key economic consequence that flows from these alternative specifications of remedial protection for any entitlement.
Abstract: In their 1972 article, Guido Calabresi and A. Douglas Melamed introduced the now standard distinction between property rules and liability rules.1 A property right gives an individual the right to keep an entitlement unless and until he chooses to part with it voluntarily.2 Property rights are, in this sense, made absolute because the ownership of some asset confers sole and exclusive power on a given individual to determine whether to retain or part with an asset on whatever terms he sees fit. In contrast, a liability rule denies the holder of the asset the power to exclude others or, indeed, to keep the asset for himself. Rather, under the standard definition he is helpless to resist the efforts by some other individual to take that thing upon payment of its fair value, as objectively determined by some neutral party.3 Calabresi and Melamed would have made a major contribution if they had simply pointed out how these remedial choices recur in widely divergent substantive settings. Yet their article became enormously influential by pinpointing the key economic consequence that flows from these alternative specifications of remedial protection for any entitlement. Because property rules give one person the sole and absolute power over the use and disposition of a given thing, it follows that its owner may hold out for as much as he pleases before selling the thing in question. In contrast, by limiting the owner's protection to a liability rule, that holdout power is lost, and in its stead the owner of the thing receives some right to compensation for the thing that has been taken away from him against his will.
106 citations
TL;DR: In the culture of Anglo-American law, we think of the trust as a branch of the law of gratuitous transfers as mentioned in this paper, and we regard it as "essentially a gift, projected on the plane of time and so subjected to a management regime".
Abstract: In the culture of Anglo-American law, we think of the trust as a branch of the law of gratuitous transfers. That is where we teach trusts in the law school curriculum,1 that is where we locate trusts in the statute books,2 and that is where American lawyers typically encounter the trust in their practice. The trust originated at the end of the Middle Ages as a means of transferring wealth within the family,3 and the trust remains our characteristic device for organizing intergenerational wealth transmission when the transferor has substantial assets or complex family affairs. In the succinct formulation of Bernard Rudden, Anglo-American lawyers regard the trust as "essentially a gift, projected on the plane of time and so subjected to a management regime."4
88 citations
TL;DR: In this article, the authors discuss the role of the Prosecution in the criminal justice system and how the criminal process changes it, including the level of Prosecution and the amount of money spent by the defense.
Abstract: (AND How CRIMINAL PROCEDURE CHANGES IT) ................ 22 A. The Prosecution .................................. 23 1. Crime Rates and the Level of Prosecution ............ 23 2. Defendants' Wealth and the Cost of Prosecution ....... 27 B . The D efense ................................... 31 1. Underlitigation ............................... 32 2. Differently Distributed Litigation .................. 35 a. Wiy Some Claims Displace Others .............. 35 b. Procedural Claims and Factual Claims ........... 37 C. Reacting to the Defense: The Prosecution (Continued) ...... 45
83 citations
TL;DR: In this article, a systematic study of fifteen years of passion murder cases was conducted and the authors concluded that reform challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse.
Abstract: Based on a systematic study of fifteen years of passion murder cases, this article concludes that reform challenges our conventional ideas of a "crime of passion" and, in the process, leads to a murder law that is both illiberal and often perverse. If life tells us that crimes of passion are the stuff of sordid affairs and bedside confrontations, reform tells us that the law's passion may be something quite different. A significant number of the reform cases the author has studied involve no sexual infidelity whatsoever, but only the desire of the killer's victim to leave a miserable relationship. Reform has permitted juries to return a manslaughter verdict in cases where the defendant claims passion because the victim left, moved the furniture out, planned a divorce, or sought a protective order. Even infidelity has been transformed under reform's gaze into something quite different from the sexual betrayal we might expect -- it is the infidelity of a fiancee who danced with another, of a girlfriend who decided to date someone else, and of the divorcee found pursuing a new relationship months after the final decree. In the end, reform has transformed passion from the classical adultery to the modern dating and moving and leaving. And because of that transformation, these killings, at least in reform states, may no longer carry the law's name of murder.
56 citations
TL;DR: In this article, the authors discuss the political compromises that occurred during the drafting of the Genocide Convention and argue that the Convention is not the sole authority on the crime of genocide, and also argue that treaty provisions such as Article II carry no legal weight when they conflict with a jus cogens norm as a higher form of law.
Abstract: This chapter discusses the political compromises that occurred during the drafting of the Genocide Convention. The jus cogens prohibition of political genocide is expressed in national legislation. The chapter describes the atrocities perpetrated by the Khmer Rouge in Cambodia to demonstrate the shortfalls of the definition of genocide in the Genocide Convention. It also describes the scope of the jus cogens prohibition of genocide, and argues that treaty provisions such as Article II carry no legal weight when they conflict with a jus cogens norm as a higher form of law. The chapter also argues that the Genocide Convention is not the sole authority on the crime of genocide. It provides political persecution accompanied other forms of persecution, so that the victims and perpetrators of the Khmer Rouge era would receive disparate justice as a result of the Genocide Convention's blind spot.
37 citations
TL;DR: Is it possible for people who sharply disagree about important questions of morality to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties?
Abstract: Is it possible for people who sharply disagree about important questions of morality, including those pertaining to abortion and homosexuality, to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties? This question is not about the possibility of political compromise; rather, it concerns the possibility of a certain type of moral agreement. This type of moral agreement is not agreement about whether abortion or homosexual conduct, for example, are right or wrong. Instead, it is agreement about basic principles of justice for a society composed of people who disagree about such issues. One possibility is for people who disagree about the morality of particular acts or practices to agree upon fair procedures for the political resolution of moral disagreements. For example, people who disagree about the morality of abortion might, as a constitutional matter, agree upon democratic procedures for setting public policy on abortion. However, people of strong and settled conviction on either side of the debate over abortion cannot reasonably be satisfied ofthe justice ofthe fundamental law of their country simply because the procedures used to arrive at a resolution were democratic. From the pro-life point of view, any regime of law (including one whose pedigree is impeccably democratic) that deprives unborn human beings of their right to legal protection against homicide is gravely unjust.1 Similarly, from the pro-choice viewpoint, restrictions on a woman's right to abortion are seriously unjust even if they were put in place by democratic procedures. From either perspective, the question of abortion is viewed as a matter of fundamental justice whose proper resolution is essential to the full moral legitimacy of the constitutional order. In this respect, the social conflict over abortion closely resembles the conflict over slavery. Of course, pro-life and pro-choice advocates may, for
32 citations
TL;DR: Democracy is more than a commitment to a set of procedures for resolving disputes as mentioned in this paper... it is a culture of respect for those procedures, and it is also more than the commitment to democratic forms of social structure and social organization.
Abstract: Democracies are societies. Behind the formal features of democratic selfgovernance-whether regular elections or majority rule-lie social organization and social structure. Like other societies, democracies have varying degrees of social stratification and social hierarchy, group competition and group subordination. But democracies are special in this respect: Their political ideals seem partly in tension with their social structures. Democracy is more than a commitment to a set of procedures for resolving disputes. It is more than a culture of respect for those procedures. Democratic ideals seem to require a further commitment to democratic forms of social structure and social organization, a commitment to social as well as political equality. Imagine a democracy organized according to strict lines of racial caste, in which all citizens have equal rights to express their views, vote and hold office, but in which job opportunities and life chances are practically and definitively limited by membership in one's social group. Government discrimination based on caste membership is strictly forbidden, but the social hierarchy remains rigidly in place even without the overt support of law. The citizens of this society take their commitment to voting and freedom of speech very seriously, yet as a society they seem equally committed to their traditional social structure. In one sense this society is a democracy, and yet in another it is very antidemocratic. Indeed, it is hard to imagine this society precisely because we think that accepting the democratic ideal of equal citizenship is inconsistent with social caste; this principle will either ultimately corrode a
TL;DR: In this article, the authors present a theoretical model of constitutional insurgency, focusing on the roles played by popular rights consciousness, direct popular power, and professional legal representation in achieving constitutional change.
Abstract: According to the standard story, the basic structure of modern constitutional law emerged from a clash between two great constitutional visions: the laissez-faire constitutionalism of the so-called Lochner Era and the progressive vision concisely summarized in footnote four of United States v. Carolene Products. The standard story omits a third great constitutional vision: labor's constitution of freedom. In the early twentieth century, American workers advanced their own interpretations of the Constitution, often in opposition to those of the Supreme Court. Workers did not wait for judicial approval to put their constitutional vision into practice. Having declared laws unconstitutional, they endeavored to strike them down through noncompliance and direct action. The article begins by setting forth a theoretical model of constitutional insurgency, focusing on the roles played by popular rights consciousness, direct popular power, and professional legal representation in achieving constitutional change. It then presents a detailed case study of constitutional insurgency. In January of 1920, the Kansas state legislature enacted the Kansas Industrial Court Act, the most ambitious piece of American labor legislation prior to the Wagner Act. Although the Industrial Court ruled in favor of workers more often than not, the American Federation of Labor declared the law unconstitutional under the Thirteenth Amendment, and ten thousand Kansas coal miners staged a four-month winter strike “against the political powers of the state of Kansas, monopoly, [and] the industrial court law.” The article tells the story and examines the dynamics of this insurgency from the level of the miners’ local unions on up to the United States Supreme Court.
TL;DR: One View of the Cathedral as mentioned in this paper is now so much a part of the legal canon that it is widely known simply by the joined names of its two authors, "Calabresi and Melamed." In turn, it has become a shorthand name for the article's most famous legacy: the distinction between "property rules" and "liability rules" as means of protecting entitlements.
Abstract: One View of the Cathedral1 is now so much a part of the legal canon that it is widely known simply by the joined names of its two authors, "Calabresi and Melamed." In turn, "Calabresi and Melamed" has become a shorthand name for the article's most famous legacy: the distinction between "property rules" and "liability rules" as means of protecting entitlements. Although The Cathedral has been widely cited over its venerable history,2 academic interest in its basic analytic categories has come and gone in waves.3 As this classic piece now approaches its twenty-fifth anniversary, however, a number of new articles have reignited the scholarly discussion of "property rules" and "liability rules" as analytic categories.4 In several of these scholarly ventures, beginning with The Cathedral itself, a particular explanatory example looms in the foreground: It is an instance of environmental pollution, grounded on a classic nuisance case, Boomer v. Atlantic Cement Co.? in which a
TL;DR: In this article, the authors argue that a school district that did not purposefully assign students based on their race would fall within the zone of defensibility, if not actual compliance, with the mandate of Brown if it made concerted efforts to raise substantially the quality of educational opportunities afforded to black children in their own neighborhoods.
Abstract: The dominant perspective among those who have examined the behavioral, academic, psychological, and cultural consequences of Brown and its progeny. Brown reinforced centralization of the education establishment and resulted in the forced integration of certain schools and districts. Dr. Doris Wilkinson, Professor of Sociology at the University of Kentucky, has compared the education of black America during the era of Jim Crow with the post-Brown developments described above. She concludes: Public school integration and the associated demolition of the black school has had a devastating impact on African American children - their self-esteem, motivation to succeed, conceptions of heroes or role models, respect for adults, and academic performance. Racial animosities have also intensified. Unless rational alternatives are devised that take into account the uniqueness of the African American heritage, busing and compulsory school integration will become even more destructive to their health and ultimately to the nation as a whole. The teachers, administrators, and school boards of both urban and suburban school districts are overwhelmingly white, and relatively few black children attend suburban schools, representing most of the "integration" that exists in public schools. Minority children ride the bus to attend schools with strangers - children belonging to another neighborhood, racial group, and social class. With only a handful of black students in each classroom, they experience prolonged isolation in predominantly white settings, where they are often "exposed to denigrating racial imagery from the teachers, tracking, low expectations, or race hatred." According to one writer, "the basic assumption of those endorsing the theory that a school district has overcome its history of racial discrimination is that a school district can be expected to treat minority students fairly without court supervision because there are no longer racial barriers." However, this illogical approach to equal educational opportunities has negatively impacted black students from both middle- and low-income families, the former often as much as the latter. Black America has devoted its energy and resources to fighting a losing battle. The Court's rejection of the most viable school desegregation plans, coupled with the reality that integration policies have "not produced the hoped-for improvement of the quality of educational opportunities for African Americans" requires a reformulation of the meaning of Brown rather than more fruitless school desegregation litigation. Accordingly, I would reinterpret the constitutional imperative of Brown as requiring equal access to quality educational programs. Thus, a school district that did not purposefully assign students based on their race would fall within the zone of defensibility, if not actual compliance, with the mandate of Brown if it made concerted efforts to raise substantially the quality of educational opportunities afforded to black children in their own neighborhoods. At the very least, good faith efforts to convert litigation resources into education resources for those with the most pressing needs would help to promote equal protection. The Detroit School Board's efforts to establish all-male academies were persuasive because officials assumed an affirmative obligation to work with parents and to involve the community in bringing about the desired changes to the troubled system. Much of the education literature supports Helaine Greenfeld's theory that what equal protection may require, in this situation, is "providing African-American and white students with what they both need, respectively, to derive an equal benefit from their schooling."
TL;DR: The educational watershed was surely Calabresi and Melamed's justly celebrated article of twenty-five years ago, suggesting a grand theory of remedies and concentrating on what it called property rules and tort liability rules as discussed by the authors.
Abstract: Imagine that B complains about pollution spewing forth from a factory owned by her neighbor, A. A generation of law students has now learned that ZTs possible remedies traverse the boundaries normally drawn between legal subject areas, much as the previous generation of lawyers learned to lower the divide between law and equity. The educational watershed was surely Calabresi and Melamed's justly celebrated article of twenty-five years ago, suggesting a grand theory of remedies and concentrating on what it called property rules and tort liability rules.1 By focusing on (and moving between) property rights, damage awards, and private bargains around these rights and awards, Calabresi and Melamed vaporized the inherited barriers between private law rights and remedies. In retrospect, that article is at least as interesting for what it missed as for what it wrought. Readers of law reviews know that a good deal of attention had been paid to the question of when judges should assign property rights or liability awards, and Calabresi and Melamed can be said to have anticipated and initiated that inquiry?which I largely avoid in the present Essay.2 Some readers also know that Calabresi and Melamed might be described as having produced something less than a grand theory of remedies?if "grand" implies completeness?because subsequent innovators have shown remedies not anticipated twenty-five years ago. My aim here is, first, to learn about
TL;DR: In this paper, it was pointed out that there are advantages which not only don't fit, but cannot fit, into any classification, and that a man who would, for instance, openly and knowingly choose to act in opposition to this whole scheme would be an obscurantist or a complete madman, wouldn't he?
Abstract: Are there, perhaps, advantages which not only don't fit, but cannot be fitted, into any classification? ... So that a man who would, for instance, openly and knowingly choose to act in opposition to this whole scheme would ... be an obscurantist or a complete madman, wouldn't he? Yet there is something astonishing about this: how is it that, in calculating man's advantages, all these statisticians, sages, and humanitarians invariably omit one of them?
TL;DR: A law school faculty is an identifiable group of individuals that has a set of formal decision-making processes for the various types of choices it must make as mentioned in this paper, such as admission to the school, what courses will be offered, who will teach these courses, and upon whom degrees will be conferred.
Abstract: Groups are messy. They are, by definition, comprised of many individuals and thus encompass a range of desires and agendas. Any group must generate ways to reach decisions among these competing possibilities. Typically, groups develop formal and informal mechanisms to define their goals and strategies. Consider a law school faculty. The faculty is an identifiable group of individuals that has a set of formal decisionmaking processes for the various types of choices it must make. A faculty votes on whom to admit to the school, what courses will be offered, who will teach these courses, and upon whom degrees will be conferred. Most faculties accomplish these decisions by some form of democratic process (majority or supermajority votes following participatory, dialogic meetings) or by some form of expertise (delegation to committees that study issues in depth and provide recommendations to, or simply make decisions for, the group). It would be rare to find a faculty
TL;DR: Henderson as mentioned in this paper argues that the best solution for familial homophobia is mutual accommodation according to the principles of comparative need and dialogue described above, and if it does not the better alternative is for the gay child to separate from the family, rather than for the state to impose tolerance from above.
Abstract: by the nondiscrimination principle.\"6 Why is it that we are generally unwilling to regulate the family in this way? It is decidedly not because the family is immune from state regulation; the police can justifiably intervene in response to physical and sexual abuse by parents of their children. If the state 159. In fact, one gay author believes that the only desirable nondiscrination rules arc those applicable to state policy. See ANDREW SULLIVAN. VIRTUALLY NORMAL 171 (1995) 160. One can imagine other state mechanisms that might help. educauon for adults as well as minors about the \"facts\" concerning homosexuality, state counseling services for parents or their gay children, and mediation of parent-child disputes. 1997] 2453 HeinOnline -106 Yale L.J. 2453 1996-1997 The Yale Law Journal regulates physical violence within the family, why not regulate emotional violence as well? The answer lies in my earlier critique of Kulturkampf. State censorship of family life would be more perilous and less promising than its suppression of dissident communities through the Kulturkampf described in Part 1. The internal emotional dynamics of a family cannot easily be regulated without undermining or destroying the creative dimensions of family. The best solution for familial homophobia is mutual accommodation according to the principles of comparative need and dialogue described above. It is increasingly rare for accommodation not to work, but if it does not the better alternative is for the gay child to separate from the family, rather than for the state to impose tolerance from above. This is both the normative advantage and weakness of families. The parents can inculcate values, which the child assimilates in some ways and rejects in others; at some point, the offspring must go out into the world, and her normative heritage will evolve in yet new directions. Today, that evolution can be informed or assisted by gay subcultures that exist in most American cities. This nomos of like-feeling and potentially supportive individuals is particularly important and necessary for gay people who have lost their blood families and who need new, or supplemental, families of choice. Religious subcultures have long served this useful purpose of supplementing blood families, and in today's society, gay subcultures work alongside religious ones. Some of the most poignant coming-out stories are those involving gay people who are emerging from a religious cloister. Essex Hemphill's The Other Invisible Man is a story of the young author's sexual initiation with an older man, George Hart of Washington, D.C.' The experience was liberating as well as thrilling for the author, but the story is more about Hart. The older man with the baritone voice was a person of \"multiple identities,\" a Christian believer, man of color, homosexual, macho boxer. \"Each identity was capable of causing him profound pain and profound invisibility. Each mask he wore could put him at risk, even as it served to protect him .... But each false identity was a chosen denial . ...,,16' The author and Hart were intimate in an Episcopal church where Hart worked and worshipped, a church that in the 1970s would have been shocked by homosexuality in any locale. When Hart died not long after their friendship, the author lamented the lost possibilities of a life lived in a closet impelled by his chosen religion as well as by his unchosen society. 63 Hart might have been better off if his church had welcomed gay people, or if he had left the church altogether. But neither can reliably be imposed from above by the state: 161. See Essex Hemphill, The Other Invisible Man, in BoYs LIKE Us, supra note 116, at 176-85. 162. Id. at 184. 163. On the complex closeting of homosexuals within African-American religious communities, see Harlon L. Dalton, AIDS in Blackface, DAEDALUS, Summer 1989, at 205, 215. 2454 [Vol. 106: 2411 HeinOnline -106 Yale L.J. 2454 1996-1997
TL;DR: Hurst as discussed by the authors characterized the criterion by which, from the 1830s to the 1870s, Wisconsin "confidently wielded authority over the waterways 2 of the lumbering region that formed so vital a part of its economy".
Abstract: \"Productivity was the central test and validating canon.\"' Thus did the late Willard Hurst, our leading historian of nineteenth-century law, characterize the criterion by which, from the 1830s to the 1870s, Wisconsin \"confidently wielded authority over the waterways 2 of the lumbering region that formed so vital a part of its economy. In this instance Hurst was referring specifically to statutes and decisions that affected the operations of a single state's extractive and processing industry, together with its use of the public waters. But the statement conveyed accurately enough the larger picture of American legal culture in the era, from the 1790s to the Civil War, a picture that Hurst provided in the masterful studies-both monographs and works of synthesis-through which he has profoundly influenced an entire generation of legal historians' research.' In The
TL;DR: For example, the authors pointed out that "the Supreme Court's voting rights jurisprudence still teeters on the brink of legal incoherence and political chaos" and "the Court has been struggling to articulate legal principles that might fix acceptable boundaries on the power of politicians to define their constituency".
Abstract: Three years after recognizing a new cause of action for racial redistricting in Shaw v. Reno,' the Supreme Court's voting rights jurisprudence still teeters on the brink of legal incoherence and political chaos. Concerned about the new extremes to which self-interested redistricting has been taken in the 1990s-particularly, but not exclusively, for racial purposes-the Court has been struggling to articulate legal principles that might fix acceptable boundaries on the power of politicians to define their constituencies.But last Term's unsurprising decisions striking down districts in North Carolina and Texas,3 like the previous Term's decision invalidating a Georgia congressional district,4 suggest that these principles remain disturbingly elusive. 5 To be sure, some speculations have been publicly confirmed, most notably that the fivemember majority crafting these new constitutional constraints is itself profoundly fragmented.' Yet the precise extent to which election districts can
TL;DR: Melamed as mentioned in this paper was the first African-American judge in the United States and became the first judge in Missouri, and he was one of the leading lawyers in the country's history.
Abstract: writings being analyzed. "Did I say thafi Did I really say that? Of course I didn't say that!" Or conversely, "Of course I said thatl Who could possibly think that I didn't? Obviously that idea was there. Anyone could tell it was there!" But who is to say whether it really was there in a meaningful sense? As a teacher of products liability, I guess I'm committed to the notion that once one creates a product, an artifact, that artifact must speak for itself, it must be taken with all that its users find in it, or find to be missing from it. And one can't completely exonerate oneself from the damage done by a plausible use of the product by saying, "I didn't mean for it to be used that way." Still, one is tempted to suggest how one's artifact should and should not be used, and so here I am. I'm very glad to see that Doug Melamed is also here; I wanted him to spring unexpected out of a cake?unfortunately there is no cake. But he is here, and you have had a chance to listen to him. I especially wanted him here because over the years many people have asked me, "Who was Melamed?" as if he didn't exist, as if he weren't one of the country's leading lawyers. Most of you, like me, are teachers and scholars, and we sometimes think of the world as one in which only scholarly achievements matter. We are, of course, quite wrong. There was a man named Nathan Young, who graduated from the Yale Law School in 1918. He founded the NAACP in Missouri, and later became the first African-American judge in Missouri. On the seventieth anniversary of his graduation, he came back to the law school and spoke at commencement. To place him among his classmates, I got a list of the people who had graduated with him in 1918. Among them was Karl Llewellyn. Naturally, I asked Young if he knew Llewellyn and he said, "Karl Llewellyn . . . of course I knew Karl, we wrote a paper together?bright fellow . . . What ever became of him?" So
TL;DR: The choice between property rules and liability rules has important consequences for the process by which entitlements change hands as mentioned in this paper, and they have been shown to promote an efficient process of exchange when transaction costs are low, while liability rules are more likely to promote efficient exchanges when the costs are high.
Abstract: Twenty-five years ago Guido Calabresi and Douglas Melamed proposed that we might look at legal rights and duties in a new way. ' Their insight was that in the process of assigning rights and duties, two distinct decisions must be made. First, who should hold the entitlement? That is, whose interest should be supported by law when interests conflict? Second, how should the entitlement be protected? The entitlement might be backed by a property rule, which promises state intervention to prevent involuntary transfers from the holder of the entitlement to others. Alternatively, it might be backed only by a liability rule, which requires those who would take or violate the entitlement to pay a price set by the state. The choice between property rules and liability rules has important consequences for the process by which entitlements change hands. When an entitlement is protected by a property rule, it can only be acquired with the holder's consent, at the price he demands. When it is protected by a liability rule, it can be taken without consent, at the price fixed by the state.2 Occasionally the state may choose instead to prohibit both voluntary and involuntary transfers-to make the entitlement inalienable.' After presenting this picture of legal rights and duties, Calabresi and Melamed outlined possible reasons for choosing one method of protecting entitlements over another. Central among these was the observation that while property rules promote an efficient process of exchange when transaction costs are low, liability rules are more likely to promote efficient exchanges when the
TL;DR: In this paper, the former head of a Chinese prison is visiting the United States for his daughter's wedding and a number of former prisoners whom he personally tortured' before their release and subsequent emigration to the U.S. would like to file a civil suit against him under the Alien Tort Claims Act (ATCA) 2 and the Torture Victim Protection Act (TVPA)3 in an effort to obtain monetary compensation.
Abstract: Consider the following dilemma. The former head of a Chinese prison is visiting the United States for his daughter's wedding. A number of former prisoners whom he personally tortured' before their release and subsequent emigration to the United States would like to file a civil suit against him under the Alien Tort Claims Act (ATCA) 2 and the Torture Victim Protection Act (TVPA)3 in an effort to obtain monetary compensation. Meanwhile, the Justice Department is compiling evidence that might allow an indictment under the new U.S. anti-torture criminal law4 within a few months of his visit. The President, however, is trying to conclude a major treaty negotiation with China and fears the political repercussions of either suit, especially the criminal one. Should either action go forward? This example illustrates the potential complexities arising from Congress's beginning to accept national criminal jurisdiction over severe human fights violations. In 1994, the United States changed its criminal code to provide that any U.S. national or person physically located within the United States could be held criminally liable for torture he or she commits anywhere against anyone.5 This statutory change, part of the U.S. ratification of the Convention
TL;DR: The Fifth Amendment Double Jeopardy Clause has been used as a metaphor for double jeopardy double talk in American case law as discussed by the authors, and it has been applied to a wide range of criminal and civil cases.
Abstract: Modern Supreme Court case law is full of double jeopardy double talk. Consider first the poetic phrase \"life or limb.\" It seems sensible enough to read these words as a grim and graphic metaphor for criminal sanctions?and such an approach runs deep in American case law, to say nothing of English literature. This reading also makes the most sense of the precise location of the Fifth Amendment Double Jeopardy Clause, wedged as it is between two other provisions?the Grand Jury and Self-Incrimination Clauses?that apply only to criminal offenses. But can \"life or limb\" be stretched to encompass some civil suits involving only money? Today's Supreme Court seems to think so,2 but how can this be squared with the text and structure of the Fifth Amendment? The Fifth Amendment Due Process Clause clearly applies to civil cases, but isn't its \"life, liberty, or property\" language obviously contradistinguished from the more narrow \"life or limb\" language of the Fifth Amendment Double Jeopardy Clause? Consider next a far more egregious example of modern double jeopardy double talk. The Double Jeopardy Clause speaks of the \"same\" offense, and yet the Court casually applies the Clause to offenses that are not the same but obviously different. Premeditated murder is not the same as attempted murder or manslaughter; armed robbery is not the same as robbery; and yet under the so-called Blockburger test, the Court generally treats a greater offense as the same as each of its logically lesser-included offenses.3 But on rare occasions,
TL;DR: In this article, the authors look at the trajectory of suffrage reform from the late eighteenth century to the adoption of the Fifteenth Amendment and argue that reformers were obsessed with the inner qualities of persons.
Abstract: Wishing to see the trajectory of American history as progressive and democratic, historians have ignored the complexities of suffrage expansion in the nineteenth century - especially the interrelation of exclusion and inclusion. This Note looks at the trajectory of suffrage reform from the late eighteenth century to the adoption of the Fifteenth Amendment and argues that reformers were obsessed with the inner qualities of persons. Whereas the eighteenth century had located a person's capacity for political participation externally (in material things, such as property), the nineteenth century found these qualities internally (in innate and heritable traits, such as intelligence). Both enfranchisement and disenfranchisement reflected this change of perspective, this look within.
TL;DR: In a recent paper as discussed by the authors, Calabresi and Melamed showed that the conventional wisdom about liability (damage) rules, that judges should use them when transaction costs are high, is incorrect, because the costs of assessing damages might in fact be higher still; if they are, property (injunction) rules are superior, at least from the standpoint of efficiency.
Abstract: It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability1 Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article?which, thanks to its subtitle, we shall call The Cathedral?has had a remarkable influence on our own thinking, as we tried to show in a recent paper.2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about liability (damage) rules, that judges should use them when transaction costs are high, is incorrect, because the costs of assessing damages might in fact be higher still; if they are, property (injunction) rules are superior, at least from the standpoint of efficiency. Second, and relatedly, we identified problems of correlation and syneigy that come into play as one tries to choose between damages and injunctive relief. Correlation problems arise because the same considerations that yield high transaction costs usually yield high assessment costs as well; syneigy problems arise because the use of damage rules can inhibit the development of more effective bargaining practices. Third, we showed that Calabresi and Melamed's celebrated Rule 4 (reverse damages) contains a paradox, which we went on to resolve by inventing reverse-reverse damages (the "double reverse twist"). The trick of the double reverse twist relates to our fourth point, having to do with a "best-chooser axiom" which can be used to illuminate matters of institutional (not just judicial) design generally. Finally, we suggested in conclusion the relationship of much of the foregoing to relevant literature in other disciplines.
TL;DR: This article reported that violence against women is the leading cause of injuries to women ages 15 to 44, more common than automobile accidents, muggings, and cancer deaths combined, and that women aged twelve and older sustain almost five million violent victimizations; approximately five hundred thousand of these victimizations are rapes and sexual assaults.
Abstract: Violence currently poses the most significant threat to women's rights as equal citizens. The Senate Judiciary Committee, after reviewing a wide array of studies on violence against women in the United States, reported that "[v]iolence is the leading cause of injuries to women ages 15 to 44, more common than automobile accidents, muggings, and cancer deaths combined."2 Violence against women occurs with disturbing frequency and results in severe, often fatal, injuries. A recent Department of Justice survey reported that, in total, women aged twelve and older annually sustain almost five million violent victimizations; 3 approximately five hundred thousand of these victimizations are rapes and sexual assaults.4 Rape in America, a
TL;DR: For example, the authors argued that criminal juries have the power but not the right to nullify the law before them, either choosing to acquit or convict when they believe the law as presented by the judge to require otherwise.
Abstract: Since the Supreme Court's 1895 decision in Sparf v. United States,' it has been a commonplace understanding that criminal juries have the power but not the right to nullify the law before them,2 either choosing to acquit or convict when they believe the law as presented by the judge to require otherwise. This power stems from a combination of a long-recognized protection of jurors to discharge their function with personal impunity,3 the double jeopardy prohibition on retrial of acquitted defendants,' and the practical difficulties of overturning erroneous guilty verdicts for insufficiency of evidence. 5 But, as the Sparf Court noted, that power does not translate into a right, at least absent some explicit authorization.6
TL;DR: The authors described the Looking-glass House as a room "like our drawing-room, only the things go the other way" and "the books are something like our books, only words go the wrong way".
Abstract: Alice described the Looking-glass House: \"First, there's the room you can see through the glass-that's just the same as our drawing-room, only the things go the other way.... [T]he books are something like our books, only the words go the wrong way.\"' As the looking glass was hanging right over the fireplace, Alice could not see whether the Looking-glass House really had a fireplace with a fire in it, as their room did. \"[Y]ou never can tell, you know, unless our fire smokes, and then smoke comes up in that room too--but that may be only pretense, just to make it look as if they had a fire.\"2 When she entered the Looking-glass House, the fireplace was the first thing Alice checked, and \"she was quite pleased to find that there was a real [fire], blazing away as brightly as the one she had left behind.\"3 But as she began looking about, she \"noticed that what could be seen from the old room was quite common and uninteresting, but that all the rest was as different as possible.\" Some Western observers see the countries of Central and Eastern Europe much as Alice saw the Looking-glass House: The stodgy supporters of the status quo are the Communists; the local Catholic Church hierarchy extols the value of democracy; and every election results in a decrease in the number of women representatives in government.5 Westerners often wonder whether the notion of women's equality, extolled by these governments for some forty-odd