The basic remedy for breach of a bargain contract is expectation damages, which puts the injured party where she would have been had the contract been performed. It is generally accepted that the expectation measure provides efficient incentives to a bargain-promisor. Beginning about twenty years ago, however, law-and-economics scholars developed a model of damages which showed that the expectation measure can provide inefficient incentives to a bargain-promisee. The theory is that the expectation measure insures the promisee's reliance, and may thereby cause the promisee to overrely - that is, to invest more heavily in reliance than efficiency requires. The theory of overreliance is not limited in its application to the expectation measure, but it is most salient to that measure, just because the expectation measure is the gold standard in a bargain context. The model upon which the theory of overreliance is based provides an extremely important insight into damages. As time went on, however, law-and-economics scholars started to lose sight of the fact that the model was just that, a model, and began to widely assume, explicitly or implicitly, that the expectation measure not only can but does provide inefficient incentives to promisees. The objective of this Article is to rehabilitate the expectation measure of damages, by showing that when institutional considerations are taken into account the theory of overreliance has virtually no real-world application. In the great majority of cases, overreliance normally cannot occur, because of the way in which the expectation measure is applied in specific contexts, because of the economics of transactions, or both. Overreliance is also unlikely to occur even in most of the residual cases, because as a result of litigation risks and litigation costs the standard expectation measure does not insure the promisee's reliance. There are a few remaining real-world cases in which overreliance might occur. In principle, the standard expectation measure could be modified to prevent overreliance in those few cases. However, the benefits of such a modification would be very low, partly because overreliance is so unlikely occur, and partly because where overreliance does occur it is likely to involve only small, marginal increments. In contrast, the costs of a modified expectation measure would be very high, because of the direct costs that would be entailed in applying the theory of overreliance to actual cases, and the indirect effect of those costs on the behavior of contracting parties.
{"title":"Expectation Damages and the Theory of Overreliance","authors":"M. Eisenberg, Brett H. Mcdonnell","doi":"10.2139/SSRN.316866","DOIUrl":"https://doi.org/10.2139/SSRN.316866","url":null,"abstract":"The basic remedy for breach of a bargain contract is expectation damages, which puts the injured party where she would have been had the contract been performed. It is generally accepted that the expectation measure provides efficient incentives to a bargain-promisor. Beginning about twenty years ago, however, law-and-economics scholars developed a model of damages which showed that the expectation measure can provide inefficient incentives to a bargain-promisee. The theory is that the expectation measure insures the promisee's reliance, and may thereby cause the promisee to overrely - that is, to invest more heavily in reliance than efficiency requires. The theory of overreliance is not limited in its application to the expectation measure, but it is most salient to that measure, just because the expectation measure is the gold standard in a bargain context. The model upon which the theory of overreliance is based provides an extremely important insight into damages. As time went on, however, law-and-economics scholars started to lose sight of the fact that the model was just that, a model, and began to widely assume, explicitly or implicitly, that the expectation measure not only can but does provide inefficient incentives to promisees. The objective of this Article is to rehabilitate the expectation measure of damages, by showing that when institutional considerations are taken into account the theory of overreliance has virtually no real-world application. In the great majority of cases, overreliance normally cannot occur, because of the way in which the expectation measure is applied in specific contexts, because of the economics of transactions, or both. Overreliance is also unlikely to occur even in most of the residual cases, because as a result of litigation risks and litigation costs the standard expectation measure does not insure the promisee's reliance. There are a few remaining real-world cases in which overreliance might occur. In principle, the standard expectation measure could be modified to prevent overreliance in those few cases. However, the benefits of such a modification would be very low, partly because overreliance is so unlikely occur, and partly because where overreliance does occur it is likely to involve only small, marginal increments. In contrast, the costs of a modified expectation measure would be very high, because of the direct costs that would be entailed in applying the theory of overreliance to actual cases, and the indirect effect of those costs on the behavior of contracting parties.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"9 1","pages":"1335-1374"},"PeriodicalIF":0.5,"publicationDate":"2002-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68568390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Because of federal constitutional concerns, a municipal entity may resort to federal bankruptcy protection only with the authorization of its state. Federal law requires that a municipality be "specifically authorized" under state law to file for bankruptcy protection. Existing California law provides fairly broad authorization for its municipalities, but the statute is in need of both technical and substantive revision. After discussing constitutional concerns and surveying other states' approaches to municipal bankruptcy authorization, Professor Tung recommends a system of discretionary access, in which the governor holds discretionary power to approve, disapprove, or condition a municipality's access to bankruptcy.
{"title":"After Orange County: Reforming California Municipal Bankruptcy Law","authors":"Frederick Tung","doi":"10.2139/SSRN.311283","DOIUrl":"https://doi.org/10.2139/SSRN.311283","url":null,"abstract":"Because of federal constitutional concerns, a municipal entity may resort to federal bankruptcy protection only with the authorization of its state. Federal law requires that a municipality be \"specifically authorized\" under state law to file for bankruptcy protection. Existing California law provides fairly broad authorization for its municipalities, but the statute is in need of both technical and substantive revision. After discussing constitutional concerns and surveying other states' approaches to municipal bankruptcy authorization, Professor Tung recommends a system of discretionary access, in which the governor holds discretionary power to approve, disapprove, or condition a municipality's access to bankruptcy.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"53 1","pages":"885"},"PeriodicalIF":0.5,"publicationDate":"2002-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68562935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the past two decades, researchers have amassed an impressive body of empirical data demonstrating the deleterious impact of exposure to interparental violence on children. Policymakers are now confronted with the question of how society can best prevent children's exposure to domestic violence and assist those children already exposed. A range of policy initiatives aimed at promoting the well-being of exposed children has emerged in the last several years. Whereas some statutory trends have been lauded by a broad range of constituencies, others have engendered substantial controversy. There is particularly vociferous debate about statutes that bring children exposed to domestic violence under the dependency jurisdiction of the juvenile court. This Article evaluates the soundness of this approach from theoretical and practical standpoints, and makes recommendations as to the types of statutes that are most likely to achieve their stated goals, while minimizing unintended negative consequences. This Article begins by reviewing the various types of statutes enacted to protect children from exposure to domestic violence. It then examines the history, philosophy, and traditional roles of the child protection system in the United States. It analyzes how childhood exposure to domestic violence meshes with the current mandates of, and goals served by, the juvenile court's dependency jurisdiction. The Article then focuses on the approaches taken by several U.S. states and Canadian provinces to use their child protection systems to address the needs of children exposed to domestic violence. Some states have interpreted existing statutes as reaching this population; others have passed statutes specifically expanding the state's definition of child maltreatment; and still others have made internal shifts in child protective services' handling of domestic violence cases. This Article evaluates the efficacy of these strategies, and articulates a blueprint for legal reform.
{"title":"Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes","authors":"L. A. Weithorn","doi":"10.2139/SSRN.301743","DOIUrl":"https://doi.org/10.2139/SSRN.301743","url":null,"abstract":"In the past two decades, researchers have amassed an impressive body of empirical data demonstrating the deleterious impact of exposure to interparental violence on children. Policymakers are now confronted with the question of how society can best prevent children's exposure to domestic violence and assist those children already exposed. A range of policy initiatives aimed at promoting the well-being of exposed children has emerged in the last several years. Whereas some statutory trends have been lauded by a broad range of constituencies, others have engendered substantial controversy. There is particularly vociferous debate about statutes that bring children exposed to domestic violence under the dependency jurisdiction of the juvenile court. This Article evaluates the soundness of this approach from theoretical and practical standpoints, and makes recommendations as to the types of statutes that are most likely to achieve their stated goals, while minimizing unintended negative consequences. This Article begins by reviewing the various types of statutes enacted to protect children from exposure to domestic violence. It then examines the history, philosophy, and traditional roles of the child protection system in the United States. It analyzes how childhood exposure to domestic violence meshes with the current mandates of, and goals served by, the juvenile court's dependency jurisdiction. The Article then focuses on the approaches taken by several U.S. states and Canadian provinces to use their child protection systems to address the needs of children exposed to domestic violence. Some states have interpreted existing statutes as reaching this population; others have passed statutes specifically expanding the state's definition of child maltreatment; and still others have made internal shifts in child protective services' handling of domestic violence cases. This Article evaluates the efficacy of these strategies, and articulates a blueprint for legal reform.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"53 1","pages":"1"},"PeriodicalIF":0.5,"publicationDate":"2002-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.301743","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68481632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The invention of trade secret doctrine in the mid-nineteenth century enabled employers to enjoin revelation of secret information by current or former employees. At the same time, courts expanded the permissible uses of post-employment covenants not to compete so as to prevent dissemination of knowledge. These doctrinal developments thus defined the bounds of permissible entrepreneurship. Equally as significant, these doctrines both generated and reflected a profoundly new perspective on the nature and control of workplace knowledge. This article examines the origins and development of the law of trade secrets and restrictive covenants through study of cases and treatises and through the study of corporate practices. Drawing on the archives of the Du Pont company, this article examines the ways in which a firm that was unusually aware of the value of employee intellectual property used law to achieve its goal of protecting its own secrets while learning new developments from others. The article analyzes how courts, firms, and workers attempted to reconcile the perceived demands of industrialization and the realities of factory work with the ideology of freedom of contract, and the corporate control of ideas with the ideology of free labor. Both the doctrine and the practice reflected the contestability during the nineteenth century of the inalienable attributes of self that lay at the foundation of the discourse of free labor. Drawing the line between what knowledge the firm could own and that which remained the possession of every free person was, in that context, an extraordinarily difficult task. The article concludes that the persistence today of the multifactored, fact-based reasonableness inquiry for restrictive covenants and of standardless, factual tests for the existence and the remedying of the misappropriation of trade secrets is evidence that the value choices at the heart of these legal issues remain as wrenching today as they were when courts first created the doctrines that set employee freedom to switch jobs on a collision course with the corporate control of intellectual property.
{"title":"Working Knowledge: Trade Secrets, Restrictive Covenants in Employment, and the Rise of Corporate Intellectual Property, 1800-1920","authors":"Catherine L. Fisk","doi":"10.2139/SSRN.262010","DOIUrl":"https://doi.org/10.2139/SSRN.262010","url":null,"abstract":"The invention of trade secret doctrine in the mid-nineteenth century enabled employers to enjoin revelation of secret information by current or former employees. At the same time, courts expanded the permissible uses of post-employment covenants not to compete so as to prevent dissemination of knowledge. These doctrinal developments thus defined the bounds of permissible entrepreneurship. Equally as significant, these doctrines both generated and reflected a profoundly new perspective on the nature and control of workplace knowledge. This article examines the origins and development of the law of trade secrets and restrictive covenants through study of cases and treatises and through the study of corporate practices. Drawing on the archives of the Du Pont company, this article examines the ways in which a firm that was unusually aware of the value of employee intellectual property used law to achieve its goal of protecting its own secrets while learning new developments from others. The article analyzes how courts, firms, and workers attempted to reconcile the perceived demands of industrialization and the realities of factory work with the ideology of freedom of contract, and the corporate control of ideas with the ideology of free labor. Both the doctrine and the practice reflected the contestability during the nineteenth century of the inalienable attributes of self that lay at the foundation of the discourse of free labor. Drawing the line between what knowledge the firm could own and that which remained the possession of every free person was, in that context, an extraordinarily difficult task. The article concludes that the persistence today of the multifactored, fact-based reasonableness inquiry for restrictive covenants and of standardless, factual tests for the existence and the remedying of the misappropriation of trade secrets is evidence that the value choices at the heart of these legal issues remain as wrenching today as they were when courts first created the doctrines that set employee freedom to switch jobs on a collision course with the corporate control of intellectual property.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"52 1","pages":"441"},"PeriodicalIF":0.5,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68227324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Few would dispute that law and legal procedures lie at the core of American self-identity and are woven deeply into the fabric of our culture. Indeed, our nation's faith in law has frequently been the subject of criticism. Most recently, self-proclaimed "communitarian" commentators have warned that our insistence on legal solutions is encouraging us to become a society of litigants whose attachment to "rights talk" and legal battles is thwarting our ability to reach consensus on social issues or instill shared values in our communities. While there are many possible responses to such a critique, this Essay offers one that is perhaps less familiar. Instead of simply arguing that law is a necessary evil or an important counterweight to majoritarian pressures, I ask whether we can conceive of ways in which law actually helps foster community by creating a forum for useful discussion and debate among differing worldviews. In order to explore the possible benefits to be gained from using "law talk" to address societal conflicts, I draw on my prior research concerning trials of animals and inanimate objects in medieval and early modern Europe and in ancient Greece. These seemingly bizarre legal proceedings may provide a useful thought experiment that allows us to imagine three possible social functions of law more generally. First, the mere assertion of legal jurisdiction may, in and of itself, help to define the boundaries of membership in a community. Second, law provides a rationalizing framework and a formal discourse that encourages a dialogue built on appeals to broader philosophical and legal principles. In addition, the ritualized nature of legal discourse may itself be a source of comfort in times of traumatic stress. Third, and perhaps most importantly, legal and quasi-legal discourse, particularly when it is widely dispersed within a culture, may provide a useful language both for debating and contesting social and political issues and for adjudicating among the multiple narratives that are inevitably present in a heterogeneous society. Thus, law may function as a symbolic terrain of engagement for competing worldviews. In this vision, our supposed national tendency to wage legal battles may not be a sign of true divisiveness, but rather of the constructive need for a discursive forum to tell alternative stories. If law can actually play such a generative discursive role, then perhaps our nation's abiding legal faith is not solely the albatross we have been led to believe it is. Perhaps our faith is also an opportunity. By creating both a forum and a language for conversation among diverse cultural narratives, and by establishing a commitment to a culture of conversation about competing values, legal debates can foster dialogue in a postmodern culture where most historical verities have been exposed as products of hierarchy. Such dialogue, because it includes the possibility for continuous self-criticism and recreation, may even open the spa
{"title":"An Observation and a Strange But True 'Tale': What Might the Historical Trials of Animals Tell Us about the Transformative Potential of Law in American Culture?","authors":"P. Berman","doi":"10.2139/SSRN.257930","DOIUrl":"https://doi.org/10.2139/SSRN.257930","url":null,"abstract":"Few would dispute that law and legal procedures lie at the core of American self-identity and are woven deeply into the fabric of our culture. Indeed, our nation's faith in law has frequently been the subject of criticism. Most recently, self-proclaimed \"communitarian\" commentators have warned that our insistence on legal solutions is encouraging us to become a society of litigants whose attachment to \"rights talk\" and legal battles is thwarting our ability to reach consensus on social issues or instill shared values in our communities. While there are many possible responses to such a critique, this Essay offers one that is perhaps less familiar. Instead of simply arguing that law is a necessary evil or an important counterweight to majoritarian pressures, I ask whether we can conceive of ways in which law actually helps foster community by creating a forum for useful discussion and debate among differing worldviews. In order to explore the possible benefits to be gained from using \"law talk\" to address societal conflicts, I draw on my prior research concerning trials of animals and inanimate objects in medieval and early modern Europe and in ancient Greece. These seemingly bizarre legal proceedings may provide a useful thought experiment that allows us to imagine three possible social functions of law more generally. First, the mere assertion of legal jurisdiction may, in and of itself, help to define the boundaries of membership in a community. Second, law provides a rationalizing framework and a formal discourse that encourages a dialogue built on appeals to broader philosophical and legal principles. In addition, the ritualized nature of legal discourse may itself be a source of comfort in times of traumatic stress. Third, and perhaps most importantly, legal and quasi-legal discourse, particularly when it is widely dispersed within a culture, may provide a useful language both for debating and contesting social and political issues and for adjudicating among the multiple narratives that are inevitably present in a heterogeneous society. Thus, law may function as a symbolic terrain of engagement for competing worldviews. In this vision, our supposed national tendency to wage legal battles may not be a sign of true divisiveness, but rather of the constructive need for a discursive forum to tell alternative stories. If law can actually play such a generative discursive role, then perhaps our nation's abiding legal faith is not solely the albatross we have been led to believe it is. Perhaps our faith is also an opportunity. By creating both a forum and a language for conversation among diverse cultural narratives, and by establishing a commitment to a culture of conversation about competing values, legal debates can foster dialogue in a postmodern culture where most historical verities have been exposed as products of hierarchy. Such dialogue, because it includes the possibility for continuous self-criticism and recreation, may even open the spa","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"52 1","pages":"123"},"PeriodicalIF":0.5,"publicationDate":"2001-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.257930","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68211401","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Telecommunications Act of 1996 sets forth extensive provisions to unbundle the local telecommunications network to encourage the development of a competitive market for local telephone. It would seem to have been an unstated premise of those statutory provisions and the Federal Communications Commission (FCC) rules interpreting them that the task of unbundling is one that should take place in a technological vacuum. Although the Telecommunications Act of 1996 ostensibly removed artificial regulatory distinctions based on the particular technology employed to produce a communications service, the administrative rulemakings and federal court litigation that have dominated the first three years of experience under the new statute have focused on the traditional wireline access network and have seemingly ignored the fact that, over the same period, wireless telecommunications has rapidly matured as a substitute for wireline access. If regulators were to acknowledge that development, the entire exercise of wireline unbundling could become irrelevant. Wireless local telephony already provides a substitute for wireline access. It is therefore highly pertinent for a symposium on interconnection, such as this one, to consider the FCC's policies that artificially constrain the market structure for wireless telecommunications services. The Supreme Court's 1999 decision in AT&T Corp. v. Iowa Utilities Board, reversed the FCC's unbundling rules for incumbent local exchange carriers to the extent that the agency failed to establish a reasonable standard for determining whether it is necessary to unbundle a particular element and whether the failure to unbundle that element would impair and entrant's ability to compete in the provision of local telecommunications services. In this Article, we propose a general framework for evaluating competition in wireless telecommunications. Although our analysis has immediate ramifications for wireless telecommunications policies-such as spectrum caps and mergers of wireless carriers-the same analysis can shed light on the question of whether, or for how long, it is necessary to mandate the unbundling of even the copper loop, which constitutes the element of the wireline network that is considered the least susceptible to duplication by competitors. If wireless is indeed an access substitute for wireline copper loops, and if wireless thus permits the competitive supply of bundled services that are satisfactory substitutes in consumers' minds for the typical bundle of services that consumers have until now demanded in conjunction with standard wireline access, then Congress, the FCC, the state public utilities commission, and the courts must ask: Is the great experiment of mandatory unbundling of telecommunications networks worth the candle? That consequential question emerges from the analysis that we employ to study a seemingly narrower issue of wireless telecommunications policy. By regulation, the FCC has limited to
{"title":"A General Framework for Competitive Analysis in Wireless Telecommunications","authors":"J. Sidak, Hal J. Singer, D. Teece","doi":"10.2139/SSRN.257924","DOIUrl":"https://doi.org/10.2139/SSRN.257924","url":null,"abstract":"The Telecommunications Act of 1996 sets forth extensive provisions to unbundle the local telecommunications network to encourage the development of a competitive market for local telephone. It would seem to have been an unstated premise of those statutory provisions and the Federal Communications Commission (FCC) rules interpreting them that the task of unbundling is one that should take place in a technological vacuum. Although the Telecommunications Act of 1996 ostensibly removed artificial regulatory distinctions based on the particular technology employed to produce a communications service, the administrative rulemakings and federal court litigation that have dominated the first three years of experience under the new statute have focused on the traditional wireline access network and have seemingly ignored the fact that, over the same period, wireless telecommunications has rapidly matured as a substitute for wireline access. If regulators were to acknowledge that development, the entire exercise of wireline unbundling could become irrelevant. Wireless local telephony already provides a substitute for wireline access. It is therefore highly pertinent for a symposium on interconnection, such as this one, to consider the FCC's policies that artificially constrain the market structure for wireless telecommunications services. The Supreme Court's 1999 decision in AT&T Corp. v. Iowa Utilities Board, reversed the FCC's unbundling rules for incumbent local exchange carriers to the extent that the agency failed to establish a reasonable standard for determining whether it is necessary to unbundle a particular element and whether the failure to unbundle that element would impair and entrant's ability to compete in the provision of local telecommunications services. In this Article, we propose a general framework for evaluating competition in wireless telecommunications. Although our analysis has immediate ramifications for wireless telecommunications policies-such as spectrum caps and mergers of wireless carriers-the same analysis can shed light on the question of whether, or for how long, it is necessary to mandate the unbundling of even the copper loop, which constitutes the element of the wireline network that is considered the least susceptible to duplication by competitors. If wireless is indeed an access substitute for wireline copper loops, and if wireless thus permits the competitive supply of bundled services that are satisfactory substitutes in consumers' minds for the typical bundle of services that consumers have until now demanded in conjunction with standard wireline access, then Congress, the FCC, the state public utilities commission, and the courts must ask: Is the great experiment of mandatory unbundling of telecommunications networks worth the candle? That consequential question emerges from the analysis that we employ to study a seemingly narrower issue of wireless telecommunications policy. By regulation, the FCC has limited to ","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"50 1","pages":"1639"},"PeriodicalIF":0.5,"publicationDate":"2001-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68211339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2000-01-01DOI: 10.1093/acprof:osobl/9780199861279.003.0012
J. Kennedy
{"title":"Monstrous Offenders and the Search for Solidarity through Modern Punishment","authors":"J. Kennedy","doi":"10.1093/acprof:osobl/9780199861279.003.0012","DOIUrl":"https://doi.org/10.1093/acprof:osobl/9780199861279.003.0012","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"51 1","pages":"829"},"PeriodicalIF":0.5,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60654540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Economic sanctions have proliferated in the last half of the twentieth century, and become the "first choice" of U.S. policymakers seeking tools to address many complex international issues. A key feature of these various sanctions programs is the use of a blacklist, to bring third party agents, controlled entities, and corporate cloaks operating elsewhere within the ambit of the sanctions aimed at a particular country or destination. These blacklists have now grown to include several thousand individuals and entities. However, despite the growing importance of economic sanctions, and their accompanying blacklists, these programs are still managed by a relatively small office within the Treasury Department, the Office of Foreign Assets Control (OFAC). Using the example of the IPT Company, Inc., a small but long established U.S. based corporation with foreign ownership, and the economic sanctions program targeted at the Federal Republic of Yugoslavia, this Article examines the processes used by OFAC to establish, impose, and implement such sanctions on a particular destination, and the closely related process of blacklisting particular parties associated with the sanctioned destination. It explores the unique, adversarial, relationship with the public which characterized much of OFAC's operations until recent years, and the impact that attitude has had on the promulgation, notice, distribution, and enforcement of OFAC's regulations. After considering the important, but limited, role individual case by case challenges have played in improving these processes, the Article concludes by suggesting that new legislation is required to remedy ongoing deficiencies in OFAC's implementation of its programs. Accordingly, it concludes by urging that the pending Sanctions Reform Act be expanded to provide detailed guidance on how sanctions should be implemented, in a manner similar to the way the U.S. Congress has both directed and overseen the operation of the export control system with the Export Administration Act.
{"title":"'If Property Rights Were Treated Like Human Rights, They Could Never Get Away with this,' Blacklisting and Due Process in U.S. Economic Sanctions Programs","authors":"Peter L. Fitzgerald","doi":"10.2139/SSRN.181028","DOIUrl":"https://doi.org/10.2139/SSRN.181028","url":null,"abstract":"Economic sanctions have proliferated in the last half of the twentieth century, and become the \"first choice\" of U.S. policymakers seeking tools to address many complex international issues. A key feature of these various sanctions programs is the use of a blacklist, to bring third party agents, controlled entities, and corporate cloaks operating elsewhere within the ambit of the sanctions aimed at a particular country or destination. These blacklists have now grown to include several thousand individuals and entities. However, despite the growing importance of economic sanctions, and their accompanying blacklists, these programs are still managed by a relatively small office within the Treasury Department, the Office of Foreign Assets Control (OFAC). Using the example of the IPT Company, Inc., a small but long established U.S. based corporation with foreign ownership, and the economic sanctions program targeted at the Federal Republic of Yugoslavia, this Article examines the processes used by OFAC to establish, impose, and implement such sanctions on a particular destination, and the closely related process of blacklisting particular parties associated with the sanctioned destination. It explores the unique, adversarial, relationship with the public which characterized much of OFAC's operations until recent years, and the impact that attitude has had on the promulgation, notice, distribution, and enforcement of OFAC's regulations. After considering the important, but limited, role individual case by case challenges have played in improving these processes, the Article concludes by suggesting that new legislation is required to remedy ongoing deficiencies in OFAC's implementation of its programs. Accordingly, it concludes by urging that the pending Sanctions Reform Act be expanded to provide detailed guidance on how sanctions should be implemented, in a manner similar to the way the U.S. Congress has both directed and overseen the operation of the export control system with the Export Administration Act.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"51 1","pages":"73"},"PeriodicalIF":0.5,"publicationDate":"1999-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67750678","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While there is a great deal of literature addressing the pros and cons of dissenting judicial opinions, no one has asked whether judges in a multi-judge court have a "right" to dissent. A "complete" right to dissent would include not just rights to (a) privately express one's disagreement to one's colleagues; and (b) have the fact that one does not join a majority opinion publically noted; but also (c) a right to have a written expression of one's dissenting rationale published in company with the majority's opinion. Justice Brennan delivered a wonderful "Defense of Dissents" in 1985 (Hastings Law Journal); not surprisingly, perhaps, so has Justice Scalia (Journal of Supreme Court History, 1994). This essay is introductory to a reprint of Justice Brennan's lecture, celebrating the Hastings Law Journal's 50th anniversay. The essay suggests that the constitutional foundation for a "right to dissent" may be found in the First Amendment (discussing "compelled silence" cases), as well as in the core meaning of the Article III terms "court" and "judge." More historical investigation needs to be done on the historical understanding of judges and their ability to issue dissents. Moreover, a "right to issue a dissenting opinion" does not necessarily imply a "right to defy precedent." The concepts are separable, perhaps properly so. Nevertheless, the constitutional claim for a right to dissent is not insubstantial. The essay includes a brief discussion of current judicial disciplinary charges that have been filed against a California appellate judge, Presiding Justice J. Anthony Kline, because he dissented from a majority judgment compelled (he conceded) by California precedent. Those charges should be dropped. (In August 1999 the charges against Justice Kline were in fact dropped with the Commission on Judicial Performance stating that judges "must be able to [dissent] free from fear of discipline for the free expression of their ideas.")
虽然有大量的文献论述了不同司法意见的利弊，但没有人问过由多名法官组成的法院的法官是否有异议的“权利”。“完全”的异议权不仅包括:(1)私下向同事表达不同意见的权利;(b)不赞同多数意见的事实被公开;而且(c)有权将个人反对理由的书面表达与多数人的意见一起发表。布伦南大法官在1985年发表了一篇精彩的《异议辩护》(黑斯廷斯法律杂志);也许并不奇怪，大法官斯卡利亚也是如此(最高法院历史杂志，1994)。这篇文章是为庆祝《黑斯廷斯法律杂志》创刊50周年而重印的布伦南法官演讲的导论。本文认为，“异议权”的宪法基础可以在第一修正案(讨论“强迫沉默”案件)中找到，也可以在第三条术语“法院”和“法官”的核心含义中找到。需要对法官的历史认识和他们提出异议的能力进行更多的历史调查。此外，“发表不同意见的权利”并不一定意味着“藐视先例的权利”。这些概念是可分离的，也许是正确的。然而，宪法对异议权的要求并非毫无根据。这篇文章包括对当前针对加州上诉法官的司法纪律指控的简要讨论，首席大法官J. Anthony Kline，因为他不同意加州先例强制(他承认)的多数判决。这些指控应该撤销。(1999年8月，针对克莱恩法官的指控实际上被撤销，司法绩效委员会表示，法官“必须能够自由表达自己的观点，而不必担心受到纪律处分。”)
{"title":"Reading Justice Brennan: Is There a 'Right' to Dissent?","authors":"R. Little","doi":"10.2139/SSRN.172788","DOIUrl":"https://doi.org/10.2139/SSRN.172788","url":null,"abstract":"While there is a great deal of literature addressing the pros and cons of dissenting judicial opinions, no one has asked whether judges in a multi-judge court have a \"right\" to dissent. A \"complete\" right to dissent would include not just rights to (a) privately express one's disagreement to one's colleagues; and (b) have the fact that one does not join a majority opinion publically noted; but also (c) a right to have a written expression of one's dissenting rationale published in company with the majority's opinion. Justice Brennan delivered a wonderful \"Defense of Dissents\" in 1985 (Hastings Law Journal); not surprisingly, perhaps, so has Justice Scalia (Journal of Supreme Court History, 1994). This essay is introductory to a reprint of Justice Brennan's lecture, celebrating the Hastings Law Journal's 50th anniversay. The essay suggests that the constitutional foundation for a \"right to dissent\" may be found in the First Amendment (discussing \"compelled silence\" cases), as well as in the core meaning of the Article III terms \"court\" and \"judge.\" More historical investigation needs to be done on the historical understanding of judges and their ability to issue dissents. Moreover, a \"right to issue a dissenting opinion\" does not necessarily imply a \"right to defy precedent.\" The concepts are separable, perhaps properly so. Nevertheless, the constitutional claim for a right to dissent is not insubstantial. The essay includes a brief discussion of current judicial disciplinary charges that have been filed against a California appellate judge, Presiding Justice J. Anthony Kline, because he dissented from a majority judgment compelled (he conceded) by California precedent. Those charges should be dropped. (In August 1999 the charges against Justice Kline were in fact dropped with the Commission on Judicial Performance stating that judges \"must be able to [dissent] free from fear of discipline for the free expression of their ideas.\")","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"50 1","pages":"683"},"PeriodicalIF":0.5,"publicationDate":"1999-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67728998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The appeal has been treated by academics as a mere legal procedure, possessing no particular significance. Indeed, for many years, legal scholars accepted the influential arguments of Professors Julius Goebel and Roscoe Pound that the appearance of the appeal in early American courts arose either from confusion about English common law legal procedures or was the result of colonial adaptation of English justice-of-the-peace practices. Professor Bilder challenges this conventional explanation of the origin of the appeal by locating the early American colonists within a transatlantic Western European legal culture. Professor Bilder's Article draws on recent work in cultural history to propose the idea of a "culture of appeal" in early America. Exploring the larger set of meanings and practices surrounding the word "appeal," she argues that the culture of appeal developed from legal, religious, political, and literary ideas in England before the 1630s. In particular, Professor Bilder argues that the appeal arose outside of the common law. She demonstrates that the appeal carried with it a belief in the importance of equity and a debate about the location of supreme authority. The Article traces the culture of appeal as it journeyed into Massachusetts and Rhode Island in the 1640s and reveals that these meanings were accepted and embraced by the early colonists. Professor Bilder concludes that the presence of the appeal in American law represents something far greater than Goebel's or Pound's interpretation of it as a mere common law procedure; she suggests that the appeal signifies a deep cultural concern for a system of equitable justice.
{"title":"The Origin of the Appeal in America","authors":"M. Bilder","doi":"10.2139/SSRN.140477","DOIUrl":"https://doi.org/10.2139/SSRN.140477","url":null,"abstract":"The appeal has been treated by academics as a mere legal procedure, possessing no particular significance. Indeed, for many years, legal scholars accepted the influential arguments of Professors Julius Goebel and Roscoe Pound that the appearance of the appeal in early American courts arose either from confusion about English common law legal procedures or was the result of colonial adaptation of English justice-of-the-peace practices. Professor Bilder challenges this conventional explanation of the origin of the appeal by locating the early American colonists within a transatlantic Western European legal culture. Professor Bilder's Article draws on recent work in cultural history to propose the idea of a \"culture of appeal\" in early America. Exploring the larger set of meanings and practices surrounding the word \"appeal,\" she argues that the culture of appeal developed from legal, religious, political, and literary ideas in England before the 1630s. In particular, Professor Bilder argues that the appeal arose outside of the common law. She demonstrates that the appeal carried with it a belief in the importance of equity and a debate about the location of supreme authority. The Article traces the culture of appeal as it journeyed into Massachusetts and Rhode Island in the 1640s and reveals that these meanings were accepted and embraced by the early colonists. Professor Bilder concludes that the presence of the appeal in American law represents something far greater than Goebel's or Pound's interpretation of it as a mere common law procedure; she suggests that the appeal signifies a deep cultural concern for a system of equitable justice.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":"48 1","pages":"913-968"},"PeriodicalIF":0.5,"publicationDate":"1998-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68175707","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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