Copyright (c) 2009 Yale Law School All rights reserved. http://digitalcommons.law.yale.edu Recent documents in Yale Law School Legal Scholarship Repository en-us Fri, 20 Nov 2009 06:09:14 PST 3600 http://digitalcommons.law.yale.edu/student_papers/95 http://digitalcommons.law.yale.edu/student_papers/95 Sat, 07 Nov 2009 08:35:12 PST Sheff v. O'Neill ushered in a new wave of education reform litigation that will challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Article proposes a new desegregation remedy--the sliding scale remedy--to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students' academic outcomes. It balances concerns over local control and separation of powers with the court's need to effectuate rights, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies. Christopher Suarez 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/ylsspps_papers/46 http://digitalcommons.law.yale.edu/ylsspps_papers/46 Fri, 16 Oct 2009 10:30:01 PDT Six years ago, Lawrence Lessig had two insights. First, code regulates. Computer software ("code") can constrain behavior as effectively as law can. Second, code is like physical architecture. When software regulates behavior online, it does so in a manner similar to the way that physical architecture regulates behavior in the real world.3 His catchphrase--"code is law"--is shorthand for the subtler idea that code does the work of law, but does it in an architectural way. With this one phrase and two ideas, he opened up an entire line of study: how regulating through software rather than through law changes the character of regulation.Unfortunately, that line of study has been stunted, and in a sense, it is Lessig's fault--for having three insights, instead of stopping with two. In the book that made "code is law" famous, Code and Other Laws of Cyberspace, Lessig also argued that software itself can be effectively regulated by major social institutions, such as businesses or governments.He then completed the syllogism. If other institutions can regulate software, and software can regulate individual behavior, then software provides these institutions an effective way to shape the conduct of individuals. James Grimmelmann http://digitalcommons.law.yale.edu/ylsspps_papers/45 http://digitalcommons.law.yale.edu/ylsspps_papers/45 Sat, 10 Oct 2009 12:51:46 PDT When peacekeepers violate human rights, they do immeasurable damage to the victims, themselves, and their missions. Reparation for these wrongs is essential for both rebuilding the trust that is needed for effective peacekeeping and affirming the human dignity of those who suffer the abuse. However, because of the unique status of peacekeepers as troops in their respective national services and members of an international UN force, the question of which entity is liable for that reparation is particularly complicated. This Paper provides a comprehensive analysis of the law and practice of reparation for the human rights abuses of UN peacekeepers and advances a new interpretation of how the "effective control" standard of liability attribution should be applied in this context. Specifically, the Paper finds that both the UN and troop-contributing states are subject to human rights law under certain circumstances, some of which certainly obtain during peacekeeping missions. It also finds that both the UN and the troop-contributors are subject to the fundamental duty to remedy human rights violations for which they are responsible. The key question is how to determine which of these international persons is responsible for the human rights abuses of peacekeepers and in which situations. Effective control is the correct governing principle. However, rather than "overall operational control" as advocated by a number of jurists and as applied in some courts, effective control must be understood to mean "control most likely to be effective in preventing the wrong in question." Applying this revised principle to the peacekeeping context, the Paper proposes a five-category framework through which to assess the appropriate locus of responsibility for peacekeepers' human rights violations. Emphasizing the importance of considering the full complexity of the command and control relationships between states, the UN and peacekeepers, this framework significantly expands the liability of troop-contributing states from what remains de facto immunity under existing interpretations in the vast majority of situations. Finally, by implementing joint and several liability wherever feasible within the confines of effective control, the proposed framework seeks to maximize the avenues to remedy for victims without prejudice to the fairness and effectiveness of a framework that accurately locates those most responsible. Karl T. Dannenbaum http://digitalcommons.law.yale.edu/ylsspps_papers/44 http://digitalcommons.law.yale.edu/ylsspps_papers/44 Sat, 10 Oct 2009 12:41:55 PDT In the past half-century, medical advances in prenatal and neonatal care have recast the moral landscape at the edge of life, death, and disability. Genetic screening technologies make it possible to discern characteristics of the unborn and abort on the basis of prenatal disability. Improvements in neonatal care allow doctors to save newborns previously beyond hope, many of whom possess disabilities that can be treated but cannot be cured. These advances have thrust a pair of intractable questions upon parents, prospective parents, and the law. When is it acceptable to have an abortion on the basis of prenatal disability? When is it acceptable to refuse lifesaving treatment on the basis of neonatal disability? More broadly, when may new parents and prospective parents choose death rather than nascent life with a disability? John Muller http://digitalcommons.law.yale.edu/ylsspps_papers/43 http://digitalcommons.law.yale.edu/ylsspps_papers/43 Sat, 10 Oct 2009 11:37:12 PDT Under most circumstances, music writer Kevin Nottingham would be exhilarated to open his MySpace inbox and find a message from Madlib, a Los Angeles-based producer-rapper whose off-kilter beats - built on some of music's most obscure sonic scraps - are the object of envy, scrutiny, and emulation by legions of independent hiphop fans. A hip-hop enthusiast with a particular interest in production techniques and digital sampling, Nottingham was the founder, editor-in-chief, and staff of KevinNottingham.com, a website dedicated to cataloging, analyzing, and discussing the work of the genre's leading producers. In addition to regular blog entries, Nottingham's site featured a wide variety of "sample sets" - compilations of digital versions of the songs sampled by his favorite producers to build their beats. In early March 2008, Nottingham posted one of his more difficult-to-compile sets, which contained the samples from 2004's Madvillainy.1 The critically acclaimed product of a collaboration between Madlib and rapper MF DOOM, Madvillainy was different from many of the other albums Nottingham had researched before; while the album's liner notes featured elaborate artwork and extensive lyric sheets, they did not reveal its samples. So, Nottingham had to start digging, resorting to his own knowledge and hints from his fellow fans to piece together the album's sources. Thomas Wolf http://digitalcommons.law.yale.edu/ylsspps_papers/42 http://digitalcommons.law.yale.edu/ylsspps_papers/42 Sat, 10 Oct 2009 11:27:44 PDT This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the expressive dimension of wrongful discrimination. Even practices marked by innocent motives and benign effects can give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. Race-based differentiation in voting ballots, dating websites, and donor catalogs helps us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us. Dov Fox http://digitalcommons.law.yale.edu/student_papers/94 http://digitalcommons.law.yale.edu/student_papers/94 Sun, 06 Sep 2009 12:31:02 PDT External legal rules are only one of many ways to direct behavior in a desired direction. People sustain cooperation in a variety of situations using systems of self-governing internally-developed and internally-enforced norms and morals. These systems have a feedback relationship with external rules. Norms and morals both influence, and are influenced by, externally-imposed legal systems. This Article examines norms' and morals' ability to sustain cooperation, both in laboratory settings and in everyday experiences. The relationship between norms and morals on the one hand, and law and order on the other, is then examined, using quantitative datasets measuring dimensions of culture and the rule of law. This examination builds on prior work that emphasizes, perhaps too strongly, the impact of legal origins - civil vs. common law - on law and order. Finally, this Article considers the feedback relationship between legal rules and norms and morals, exploring how rules may replace internal governance both explicitly and, through their expressive function, implicitly. The specific case of legal rules' influence on culture adopted through the naturalization process is considered. Peter Molk http://digitalcommons.law.yale.edu/student_papers/93 http://digitalcommons.law.yale.edu/student_papers/93 Sun, 06 Sep 2009 10:28:28 PDT This article addresses the Holocaust-restitution litigation of the late 1990s, which resulted in spectacular settlements totaling over $9 billion and culminated with an Executive Agreement between Germany and the United States in 2000. Prominent law scholars such as NYU Professor Burt Neuborne and Michael Bazyler, author of Holocaust Justice: The Battle for Restitution in America's Courts (2003) and Holocaust Restitution: Perspectives on the Litigation and its Legacy (2006), have celebrated these lawsuits as a model for international human rights. Neuborne has extolled the litigation as the dawn of an era of "lex Americana," in which multinational corporations (MNCs) have a "moral obligation to live by American rules of fundamental fairness, both substantive and procedural, if they wish to participate in the remarkable success of this economic, social, and political culture." Bazyler is equally enthusiastic: "[T]he Holocaust restitution cases [are] beco! ming the principal model for victims and their representatives seeking to right past wrongs." Legal scholarship has thus contributed to a heroic image of plaintiffs slaying the Goliath of global corporations in international human-rights litigation. This fits larger trends in foreign relations law that Anne-Marie Slaughter and David Bosco identify as "Plaintiff's Diplomacy." In Plaintiff's Diplomacy, individuals directly shape foreign affairs by suing in the courts, thus bypassing the traditional diplomacy between states. According to this model, private parties can no longer be shut out. Bazyler's summary of the Holocaust-era litigation provides an example: "The 'one-two punch' of American lawyers first filing the class action lawsuits against the European defendants [MNCs] and American officials at the state and local levels then threatening to exclude the defendants from profitable U.S. [business] deals was the perfect strategy" But Bazyler vastly exaggerates the importance of litigantion. The State Department had already been seeking to settle su! rvivors' claims for several years in advance of any lawsuits. This article makes three original contributions. First, contrary to the heroic narrative of "plaintiffs' diplomacy," it argues that the United States' political branches contributed more to the successful settlements than litigation. Instead of individuals mobilizing the courts to change the behavior of recalcitrant states, the process worked in reverse. States-parties led the way. Second, using historical evidence, this article examines the survivors' legal claims, which sounded in restitution. Because the Holocaust survivors' succeeded in large settlements and because their suffering was beyond question, scholars have simply taken it for granted that they advanced strong legal claims. Historical evidence shows that their claims were surprisingly weak. Third, this article tests Bazyler and Neuborne's hypothesis that the Holocaust-era litigation provides a model for successful lawsuits against MNCs that perpetrate human-rights violations. By examining the legacy o! f the Holocaust-era lawsuits in other international human-rights litigation, this article shows that the plaintiffs' restitutionary theories of recovery neither have nor can provide such a model. Michael Allen 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