Copyright (c) 2009 Yale Law School All rights reserved. http://digitalcommons.law.yale.edu/fss_papers Recent documents in Faculty And Affiliate Scholarship Series en-us Sun, 08 Nov 2009 23:25:19 PST 3600 http://digitalcommons.law.yale.edu/fss_papers/24 http://digitalcommons.law.yale.edu/fss_papers/24 Sat, 07 Nov 2009 08:02:57 PST We analyze liability rules in a setting where injurers are potentially insolvent and where negligence standards may deviate from the socially optimal level. We show that proportional liability, which sets the measure of damages equal to the harm multiplied by the probability that it was caused by an injurer's negligence, is preferable to other existing negligence-based rules. Moreover, proportional liability outperforms strict liability if the standard of due care is not set too low. Our analysis also suggests that courts should rely on statistical evidence and bar individualized causal claims that link the harm suffered by a plaintiff to the actions of the defendant. Finally, we provide a result which might be useful to regulators when calculating minimum capital requirements or minimum mandatory insurance for different industries. Alexander Stremitzer http://digitalcommons.law.yale.edu/fss_papers/23 http://digitalcommons.law.yale.edu/fss_papers/23 Sat, 15 Aug 2009 08:05:51 PDT Article 15(1)(a) of the International Covenant on Economic Social and Cultural Rights--a source of binding law in 160 countries--recognizes "the right of everyone to take part in cultural life." This provision, however, has so far been little interpreted. This essay suggests how lawmakers and jurists might give meaning to the right to take part in cultural life, with particular attention to issues arising in an age of digital culture. The authors conclude that the right to take part in cultural life should be understood in terms of the ability to access, enjoy, engage, and extend upon a common cultural inheritance and that realizing this right will require significant reforms in international intellectual property law. Lea Shaver http://digitalcommons.law.yale.edu/fss_papers/22 http://digitalcommons.law.yale.edu/fss_papers/22 Mon, 03 Aug 2009 16:15:25 PDT Comparative indices are widely used in international development circles to benchmark and monitor public policy objectives. To date, however, no one has examined how an index of Access to Knowledge might be constructed. This article examines the methodological issues involved in such a project and provides a blueprint for the development of a robust and reliable A2K Index. For those new to the Access to Knowledge framework, this article also serves as a concrete and concise orientation to the ideological perspective rapidly reshaping the fields of international development, communications, technology, education, and intellectual property policy. Lea Shaver http://digitalcommons.law.yale.edu/fss_papers/21 http://digitalcommons.law.yale.edu/fss_papers/21 Wed, 03 Jun 2009 08:30:32 PDT This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that might accomplish this change.I offer three examples, each organized by: (1) the argumentative modality within which the text most often appears; (2) the type of evolution the text's meaning has undergone; and (3) the predominant sphere of constitutional discourse in which the evolution has taken place. The first example--Thomas Jefferson's Reply to the Danbury Baptists--appears in the historical modality, and is an example of "decanonization" accomplished in the Supreme Court. The second, Lochner v. New York, appears in doctrinal argument and exemplifies "canonical refinement" within the legal academy. The Declaration of Independence and the Gettysburg Address are my final examples; they appear in the ethical modality, and illustrate "canonical reformation" within the sphere of constitutional politics. Along the way, I hope that my historical narratives shed perhaps a little light on old and familiar stories.I do not intend to forward much of a normative interpretive theory here, beyond pointing to Wittgenstein's generalized assertion that meaning can best be found in use. Indeed, I believe this approach is in keeping with the central and illuminating Wittgensteinian insight that Bobbitt has brought to constitutional law. That is, there are no "right" answers to many constitutional questions; there are no foundational kinds of definitions for the most controverted constitutional terms, which we might discover if only we could hit upon the correct interpretive theory or algorithm. All that we have is the constitutional conversation itself--this discussion and its derivative decisions are, in fact, the constitution--and the only meanings we can attach to disputed terms are those that we can discover by looking to their proper use. It is nonetheless true that such a descriptive project is also, by necessity, a historical project, complete with its own kinds of interpretive decisions and normative judgments. But my aim here is at a particular kind of history--an "argumentative" history, for lack of a better phrase--which explores the appearance and construction of canonical texts within particular arguments, and tries generally to avoid taking a position on the merits of substantive claims. In the end, I conclude that constitutional argument--like art--is better described than explained. Ian C. Bartrum Constitutional Law Jurisprudence Legal History http://digitalcommons.law.yale.edu/fss_papers/20 http://digitalcommons.law.yale.edu/fss_papers/20 Thu, 19 Mar 2009 12:34:56 PDT Organizations with multiple individuals typically make decisions by following the will of the majority of some subset of stakeholders that are entitled to vote. This paper examines an alternative decision-making mechanism--the "pivotal" mechanism developed by Groves and Clarke. Unlike voting, the pivotal mechanism produces efficient outcomes in the presence of heterogeneous voter preferences. Moreover, the mechanism allows control rights to be allocated more widely, reducing the costs of opportunism when a controlling class of stakeholders has interests adverse to another class. These benefits come with costs. The pivotal mechanism's efficiency diminishes in the presence of collusion between voters and requires the creation of "pools" that disperse revenues created by the mechanism. The mechanism is therefore most attractive when the costs of heterogeneity are large and the risks of collusion are small. As a result, I propose the development of a legal basis for the pivotal mechanism as a menu option for organizational decision making. Yair J. Listokin Bankruptcy Law Corporations Housing Law Law and Economics Organizations Partnerships http://digitalcommons.law.yale.edu/fss_papers/19 http://digitalcommons.law.yale.edu/fss_papers/19 Thu, 28 Aug 2008 08:01:52 PDT Although the Supreme Court's 1989 decision in Teague v. Lane generally prohibits the application of new constitutional rules of criminal procedure in federal habeas review of state-court judgments, the Court's 2008 decision in Danforth v. Minnesota frees state courts from Teague's strictures. Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions.In this Article, I examine the doctrinal underpinnings of the Court's retroactivity jurisprudence, and propose that state courts and the lower federal courts abandon the Supreme Court's experiment with nonretroactivity. Affording retroactive application to new constitutional rules in state and federal postconviction proceedings promotes fairness to litigants and uniformity in the development of federal constitutional criminal doctrine. Perhaps most importantly, a rule of retroactivity permits the lower state and federal courts to regain a role in the development of constitutional doctrine that had previously been constricted, first by Teague and then by the Antiterrorism and Effective Death Penalty Act.My examination of the Danforth opinion leads me to believe that the foundations upon which Teague was built are now crumbling. Danforth marks a shift in the Court's conception of the function of habeas corpus which portends well for the reinvigoration of a constitutional dialogue among the lower courts and an increased role in constitutional development for the lower federal courts. Christopher N. Lasch Criminal Law and Procedure http://digitalcommons.law.yale.edu/fss_papers/18 http://digitalcommons.law.yale.edu/fss_papers/18 Thu, 28 Aug 2008 07:39:09 PDT In popular discussion, the term constitutional crisis is used to describe every kind of conflict, great and small. But we think we can give the idea greater analytical clarity, and in the process, make some important points about constitutional design.The secret, we shall argue, is to think about crisis not in terms of constitutional disagreement but in terms of constitutional design. Disagreement and conflict are natural features of politics. The goal of constitutions is to manage them within acceptable boundaries. When constitutional design functions properly-- even if people strongly disagree with each other and threaten each other-- there is no crisis. On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of crisis. In this essay we offer a typology of different types of constitution crises based on this insight. We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used-- or threatened-- in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task. Jack M. Balkin Constitutional Law http://digitalcommons.law.yale.edu/fss_papers/17 http://digitalcommons.law.yale.edu/fss_papers/17 Wed, 09 Apr 2008 08:18:14 PDT The Supreme Court's jurisprudence on church-state issues is unsettled. With respect to the Establishment Clause, the three-pronged test from Lemon v. Kurtzman is often used to hold government benefits to religious organizations unconstitutional. But, in cases where the majority of the Court finds the governmental benefit permissible, Lemon is generally unmentioned. This problem is confounded when the Court considers accommodations for religious organizations. Lemon, without refinement, is ill-suited to application to such accommodations. Does allowing religious organizations an exemption from generally applicable laws benefit a religious organization in violation of the Establishment Clause or does failing to provide the accommodation violate the Free Exercise Clause and unduly punish religious organizations because of their message? This paper addresses these questions and presents a new, more coherent test for accommodations to religious organizations. Specifically, it looks at the employment practices of religious organizations participating in school choice programs to determine (1) is it constitutional for accommodations to be made to religious schools participating in the program, and (2) would it violate the Free Exercise clause to deny the accommodation in some circumstances. Finally, the paper asks if legislatures authorizing school voucher programs could constitutionally demand waiver of any exemptions as a condition on participation in the program. Ashlie Warnick Civil Rights Constitutional Law Employment Practice Religion http://digitalcommons.law.yale.edu/fss_papers/15 http://digitalcommons.law.yale.edu/fss_papers/15 Tue, 11 Mar 2008 07:41:35 PDT The world's nations vary widely in the quality of their judicial systems. In some jurisdictions, the courts resolve commercial disputes quickly, fairly, and economically. In others, they are slow, inefficient, incompetent, biased, or corrupt. These differences are important not just for litigants, but for nations as a whole: effective courts are important for economic development. A natural implication is that countries with underperforming judiciaries should reform their courts. Yet reform is both difficult and slow. Another way to deal with a dysfunctional court system is for litigants from afflicted nations to have their commercial disputes adjudicated in the courts of other nations that have better-functioning judicial systems. We explore here the promise of such extraterritorial litigation and conclude that it is strong, particularly in light of a communications revolution that is making litigation at a distance increasingly feasible.While available data suggests that the volume of extraterritorial litigation is presently small, a set of basic legal reforms could eventually change that situation dramatically. To create incentives for adopting those reforms, it is essential to provide jurisdictions with a strong incentive to attract foreign litigants. The best way to achieve this is to allow jurisdictions to impose higher court fees in cases between foreign litigants that do not have substantial ties to the forum state. This may require an important adjustment in the legal culture. But only by abandoning formal equality in court fees is it likely that real global equality in access to judicial services can be accomplished. Jens C. Dammann Commercial Law Conflicts of Law Contracts Courts International Law Jurisdiction http://digitalcommons.law.yale.edu/fss_papers/14 http://digitalcommons.law.yale.edu/fss_papers/14 Tue, 11 Mar 2008 07:24:02 PDT Over the past fifty years, proportionality balancing - an analytical procedure akin to "strict scrutiny" in the United States - has become the dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part I proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts II and III provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes the doctrinal underpinning for the expansion of judicial power globally. ! Indeed, judges who adopting it position themselves to exercise dominance over both policymaking and constitutional development. Alec Stone Sweet Comparative Law Constitutional Law International Law Jurisprudence Politics