Faculty Bibliography
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Martha Minow, Introduction, The Young Adulthood of a Women's Law Journal, 20 Harv. Women's L.J. 1 (1997).
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Introductory Essay to Perspectives on Our Progress: Twenty Years of Feminist Thought.
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In Outside the Law, eighteen extraordinary voices explore the difference, often achingly personal, between true justice and the law. These original pieces use powerful storytelling - as immediate as Clarence Page writing on the Simpson trial and Blanche McCrary Boyd on Susan Smith - to define justice, to give it a face, to show how justice affects the lives of every one of us. The distinguished contributors ask questions like "How do we know what is just?" and "What are the effects of injustice?" and they refuse to let their responses remain in the realm of the abstract. John Edgar Wideman examines his son's imprisonment for murder to reveal how law is often a tragic approximation of justice, and Daniel J. Wideman, in one of the book's several instances of how the warp of justice affects generations of family, gives his own conception of his brother's incarceration. Sarah Pettit writes on the "dizzy spin" of gay Americans who are told they are seeking "special rights"; Julia Alvarez recounts the lingering effects of a brutal political regime on the civic behavior of her parents; and Madison Smartt Bell examines the perhaps illusory idea of an inner sense of "true morality." Charles Johnson imagines a black man, a white woman, and justice in the workplace, and Richard Bausch writes on a shameful boyhood incident - and the cultural assumptions that led to it.
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Alford, William P. & Yuanyuan Shen, Limits of the Law in Addressing China's Environmental Dilemma, 16 Stan. Envtl. L. J. 125 (1997).
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William P. Alford, Making the World Safe for What? Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-European Cold War World, 29 N.Y.U. J. Int'l L. & Pol. 135 (1997).
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Deborah E. Anker, Rape in the Community as a Basis for Asylum; The Treatment of Women Refugees: Claims to Protection in Canada and the United States, Part I & II; Mental Harm and Suffering as Persecution, Bender's Immigr. L. Bull. (1997)(Bi-weekly column from 1997-1998).
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One of America's leading appeal lawyers, Alan Dershowitz was the man chosen to prepare the appeal should O.J. Simpson have been convicted. Now Professor Dershowitz uses this case to examine the larger issues and to identify the social forces - media, money, gender, and race - that shape the criminal-justice system in America today. How could one of the longest trials in the history of America's judicial system produce a verdict after only hours of jury deliberation? Was this really a case of circumstantial evidence?
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Since the issuance of the United States Gender Guidelines in 1995, the immigration agencies have faced special challenges in applying them in particular cases, and in institutionalizing their commitments and principles. Since adoption of the guidelines, many asylum officers, immigration judges and Immigration and Naturalization Service (INS) trial attorneys have shown greater sensitivity in addressing gender-related asylum claims. Nonetheless, in some cases lawyers for the INS have suggested that a heightened test of extraordinary persecution is appropriate or that the applicant must show persecution on account of gender plus something else in order to prevail. Claims involving domestic violence have raised particular concerns. Although the guidelines state that domestic violence can be the basis for an asylum claim, some INS attorneys have suggested that domestic violence is a private family matter not subject to protection under United States asylum law. As a result, this article originally was submitted as a position paper by the Refugee Law Center, Inc. and the Women and International Law Program of American University's Washington College of Law, in collaboration with other nongovernmental organizations, to the INS. Its purpose was to provide a framework of analysis of domestic violence as a human rights violation and as a basis for asylum protection.
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Agreeing and sympathizing as I do with what I take to be the core of Professor Abraham's argument—that prevailingly American constitutional thought and public reason model their conceptions of liberty and basic rights too much on proprietorship and too little on citizenship—I confine myself here to a suggestion about the framing of the argument.
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Comments on the essay written by William Connolly entitled `Suffering, Justice and the Politics of Becoming.' Parallelism with short story by Julio Cortazar entitled `The Southern Thruway'; Expression of support in response to human suffering; Sense of shared experience and shared suffering.
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"Gerald Neuman discusses in historical and contemporary terms the repeated efforts of U.S. insiders to claim the Constitution as their exclusive property and to deny constitutional rights to aliens and immigrants--and even citizens if they are outside the nation's borders. Tracing such efforts from the debates over the Alien and Sedition Acts in 1798 to present-day controversies about illegal aliens and their children, the author argues that no human being subject to the governance of the United States should be a "stranger to the Constitution." Thus, whenever the government asserts its power to impose obligations on individuals, it brings them within the constitutional system and should afford them constitutional rights. In Neuman's view, this mutuality of obligation is the most persuasive approach to extending constitutional rights extraterritorially to all U.S. citizens and to those aliens on whom the United States seeks to impose legal responsibilities. Examining both mutuality and more flexible theories, Neuman defends some constitutional constraints on immigration and deportation policies and argues that the political rights of aliens need not exclude suffrage. Finally, in regard to whether children born in the United States to illegally present alien parents should be U.S. citizens, he concludes that the Constitution's traditional shield against the emergence of a hereditary caste of "illegals" should be vigilantly preserved."
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Introduction to a Symposium on Political Lawyering: Conversations on Progressive Social Change. The Symposium was inspired by a conference with the same name, celebrating Gary Bellow's long-standing commitment to progressive lawyering that was held at Harvard Law School in November, 1995.
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Although the number of black students graduating from law schools has increased significantly in recent decades, blacks still make up a very small minority of the lawyers working in large corporate law firms. Available data indicate that these firms hire few blacks, and that those they do hire are more likely than their white peers to leave the firms before becoming partners. Conventional explanations blame the underrepresentation of blacks in corporate firms on either the racism of firms and their clients, or a shortage of qualified, interested black candidates. While acknowledging that in some instances these factors may help to explain the problem, this Article looks behind them to examine institutional factors that tend to perpetuate the existing underrepresentation. Specifically, the Article shows how the ways in which large corporate firms recruit and train lawyers tend both to shield discriminatory choices between black and white candidates from any competitive disadvantage, and to discourage black law students and lawyers from investing in skills that will enable them to succeed within corporate firms. Thus, the Article argues, firms' hiring and training decisions both shape and are shaped by the strategic choices of black candidates, with the net effect of keeping all but a few blacks from being hired and succeeding in the firm setting. Finally, this Article explores the implications of these incentives for five commonly proposed tools for diversifying corporate law firms: anti-discrimination laws, race-neutral institutional reforms, diversity education within firms, demand-creation initiatives, and supply-side initiatives to encourage hiring and promotion of black lawyers.
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Gerald L. Neuman, Subsidiarity, Harmonization, and their Values: Convergence and Divergence in Europe and the United States, 2 Colum. J. Eur. L. 573 (1996).
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In surveying insights gained from these two symposia, I will not presume to replicate George Bermann’s fine recapitulation of the first symposium. Rather I will try to make a series of comparative observations on what I have learned, from an American point of view, under the general heading “Subsidiarity, Harmonization, and their Values. Speakers have repeatedly invoked the Supreme Court’s opinion in New York v. United States. Early in that opinion, Justice O’Connor made the following disclaimer: The benefits of this federal structure have been extensively catalogued elsewhere, but they need not concern us here. Our task would be the same even if one couldprove that federalism secured no advantages to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution. Then, in a manner too predictable to be called ironic, O’Connor followed this disclaimer by imposing a brand-new doctrine of federalism – the anti- commandeering principle – which may or may not be normatively attractive, but which lacks persuasive grounding in either text or history. On a prior occasion, Richard Briffault has argued that a disclaimer like O’Connor’s defines the proper judicial role in U.S. federalism. The values served by subsidiarity are diverse and difficult to quantify. In any given case, whether subsidiarity actually promotes those values, and to what degree, and how those benefits compare with the conflicting values served by federal legislation, are matters ill-suited to judicial determination. George Bermann has similarly argued that the European Court of Justice should limit itself to a procedural review of subsidiarity – Rudolf Steinberg disagrees. But we are not judges. Scholars and policymakers both may properly ask what values are served by subsidiarity in the European Union and the United States, in general, and in the particular cases where subsidiarity claims are respected or overridden. As Ingolf Pernice reminds us, federalism is not intended to benefit the states or public officials as an end in itself, but to benefit their people. I would like to take that statement here in the opposite of the sense in which Justice O’Connor meant it. O’Connor meant that state sovereignty should be protected in formal terms, and that we should treat state sovereignty as a mechanism whose protection would ultimately produce benefits for the people. As scholars, we are entitled to look behind the state in each case, and ask who benefits. For the United States, Justice O’Connor has summarized the values served by federalism as follows: It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. Perhaps the principal benefit of the federalist system is a check on abuses of government power. The virtues ascribed to subsidiarity in the European context are similar, though not identical. For example, George Bermann has summarized the values underlying subsidiarity as “self-determination and accountability, political liberty, flexibility, preservation of identities, diversity, and respect for internaldivisions of component states,” plus the possible value – if it counts as a value per se – of deregulation.”
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In this Article, Professor Rosenberg discusses the perceived problem of Individualjustice in collectivized adjudication of mass-exposure cases. He focuses on risk-based claims-i.e., those claims predicated on exposure to a tortlously Imposedrisk, rather than on actual harm and loss-to argue for greater collectivization.Finding that standard procedural analyses are deficient, Professor Rosenberg callsfor consideration of collectivization from the perspective of the deterrence andcompensation policies underlying tort law generally and risk-based claims specifi-cally. He demonstrates that deterrence offers the strongest-if not only-justfica.tion for such claims, and that collectivization enhances the deterrence goal in mass-exposure litigation. In addition, Professor Rosenberg explains that collectivizationalso promotes individual justice by providing plaintiffs with the levels of compensa-tion and insurance that they would rationally select on their own, and that collectiv-ization is consistent with objective standards used to determine both liability anddamages in tort law. Based on this analysis, Professor Rosenberg concludes that Ifallowed to choose the process for adjudicating and settling mass-exposure cases,individuals would select mandatory collectivization.
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Using the proposed constitutional amendment to ban the desecration of the US flag as a case study, the tension between legal positivism & popular sovereignty is explored. The collective will of the governed constitutes the highest law in a constitutional democracy. In contrast to this democratic positivism, the constitution itself predates the will of the people since it is based on a preexisting moral idea. The controversy over flag desecration forces the question as to whether such a preexisting idea requires protection in the face of unpopular political expression. Constitutional democrats, it is argued, must therefore be legal antipositivists. More than an exercise in free will, however, constitutional amendment making is also an ethical judgment & moral commitment. Popular sovereignty, therefore, is both an expression of the people’s will to make law in the way they see fit, & a search for the opposite – a higher ethical & moral position.
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Part of a Symposium entitled: Meeting the Basic Needs of Children: Defining Public and Private Responsibilities.
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This book adopts a public policy perspective in its examination of the way capital market intermediaries fund their market operations in eight of the most dynamic countries of East and Southeast Asia: Hong Kong Indonesia Korea Malaysia the Philippines Singapore Taiwan Thailand. Concerns about the ability of securities firms to fund themselves came into prominence in the world's major financial markets during the 1980s. It is striking that similar concerns had not surfaced about the Asian capital markets, particularly given the weakness of their money markets. As the forces limiting demand for funds change in the future, the financial systems examined will encounter problems in responding to the new demands for liquidity. The strength of this book lies in its analytical and comparative approach, rather than simply acting as a descriptive tool.
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Alvin C. Warren, Jr., How Much Capital Income Taxed Under an Income Tax is Exempt Under a Cash-Flow Tax?, 52 Tax L. Rev. 1 (1996).
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Cash flow taxation, including some current proposals for U.S. tax reform, would exempt some capital income in the sense that there would be no difference between the pretax and after-tax rates of return on that capital. Although there is wide agreement on this proposition among tax policy analysts, the precise difference between income and cash flow taxation of capital income has been described in quite different ways. Like an income tax, a cash flow tax would include receipts from a variety of sources, including receipts from capital investment. The key distinction between the two taxes is that capital costs are currently deducted (or “expensed”) under the cash flow tax, whereas they are capitalized and later deducted (as depreciation or basis) under the income tax. This Article accordingly examines the effects of expensing in order to evaluate four different responses to the question of how much capital income taxed under an income tax is exempt under a cash flow tax: (1) all, (2) only the normal rate of return, (3) only the riskless rate of return, and (4) none. The goal of the analysis is to elucidate the assumptions underlying the different responses and the relationships among them. The analysis of each response includes a verbal explanation, a numerical example, and a simple algebraic model. In order to facilitate comparison of the two tax bases, the discussion assumes flat rate taxes, full loss offsets, and no inflation. Important transitional issues, such as the treatment of existing capital on substitution of a cash flow tax for an income tax are not considered. “Capital” is used here in the traditional sense of financial or physical capital, and therefore does not include human capital, which presents special problems for income taxation.5 The analysis begins with the simple case of a single rate of return on all capital, and then introduces multiple rates and risk taking.
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Reviewing William H. Simon, Should Lawyers Obey the Law?, 38 Wm. & Mary L. Rev. 217 (1996).
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Elizabeth Bartholet, International Adoption: Propriety, Prospects, and Pragmatics, 13 J. Am. Acad. Matrimonial Law. 181 (1996).
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