Faculty Books & Edited Works

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  Cases and Materials on Torts

  Richard A. Epstein and Catherine M. Sharkey

  This highly successful casebook integrates modern scholarship and historical background to provide students with a thorough understanding of tort law. Written by leading scholar Richard Epstein, Cases and Materials on Torts takes an explicitly economics-based point of view and examines the processes of legal methods and reasoning, and the impact of legal rules on social institutions. The Tenth Edition welcomes new co-author Catherine Sharkey, an expert on punitive damages and federal preemption of state tort law. Hypothetical problems have been added to assist students in their understanding of core issues. New developments, such as privacy and defamation in the Internet Age, and the relevance of race and gender in calculating damages, are given thorough coverage. Features: written by a leading scholar in the field; economics-based point of view makes a good foil for counterpoint and fuels class discussion; traditional approach integrates cases with modern scholarship on moral theory, law and economics, and salient policy questions; begins with Intentional Torts and other physical and mental harms, and progresses logically through to nonphysical interests; thoughtful presentation examines the processes of legal method, legal reasoning, and the impact of legal rules on social institutions; exposes students to different intellectual approaches that have been employed to interpret tort law over the years; historical background provides contextual framework of tort law and its development up to the present. Thoroughly updated, the revised Tenth Edition includes: new co-author, Catherine Sharkey, an expert on punitive damages and federal preemption of state tort law; empirical approach to many issues harmonizes the topics with cutting edge scholarship; hypothetical problems, inspired by the facts of actual cases, to help students develop a deeper understanding of the core issues; new issues are explored, such as privacy and defamation in the age of the Internet, and the relevance of race and gender to damages calculations.

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  Research Handbook on the Economics of Labor and Employment Law

  Cynthia Estlund and Michael L. Wachter

  This Research Handbook assembles the original work of leading legal and economic scholars, working in a variety of traditions and methodologies, on the economic analysis of labor and employment law. In addition to surveying the current state of the art on the economics of labor markets and employment relations, the volume’s 16 chapters assess aspects of traditional labor law and union organizing, the law governing the employment contract and termination of employment, employment discrimination and other employer mandates, restrictions on employee mobility, and the forum and remedies for labor and employment claims. Comprising a variety of approaches, the Research Handbook on the Economics of Labor and Employment Law will appeal to legal scholars in labor and employment law, industrial relations scholars and labor economists.

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  Cases and Materials on Employment Discrimination and Employment Law

  Samuel Estreicher and Michael C. Harper

  Tracking the field as it is practiced by employment lawyers on both the plaintiff and defense sides, this casebook provides a one-semester treatment of the full range of employment discrimination laws as well as the core subjects of an employment law offering. Coverage includes the following: laws designed to protect individuals from discriminatory employment decisions; the extent to which the law prevents employers from retaliating against employees for filing claims, reporting misdeeds or other activity that our society highly values or seeks to protect; the common law of the employment relationship; the enactment of wage-hour, pension and other "minimum terms" laws to establish regulatory floors for private negotiation of employment contracts; and the procedural design of regulatory systems, including in-depth consideration of class actions, preemption and arbitration issues. It has been updated with all recent leading cases, newly enacted statutes, including the ADAAA, and integration of recently completed and membership-approved chapters of the Restatement of Employment Law on employment contract, employment torts and employee duties. PowerPoint Slides are available to adopting professors.

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  Cases and Materials on Employment Discrimination Law

  Samuel Estreicher and Michael C. Harper

  This incisive casebook presents updated materials on employment discrimination law. The book provides a text for a comprehensive course on the substance and procedure of employment discrimination law, including in-depth analysis of models of proof under Title VII, and of the special problems presented by the regulation of sex, age, disability, and retaliatory discrimination. The book also highlights procedural systems under Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), as well as issues of coordination between private arbitration and federal and state regulation. Particular attention is given to recent important decisions, such as Ricci and Wal-Mart and to recent statutes, particularly the ADA Amendments Act of 2008.

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  Contracts for the International Sale of Goods: Applicability and Applications of the 1980 United Nations Sales Convention

  Franco Ferrari

  Contracts for the International Sale of Goods provides an examination of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Extensively referenced, this volume focuses on three fundamental issues, which, due to added attention from courts and arbitral tribunals, are considered “typical” of CISG related disputes. These include the exact determination of the CISG’s sphere of application; issues relating to the non-conformity of delivered goods; and the determination of the rate of interest on sums in arrears. This analysis will also help readers understand the broader context in which these issues are embedded, and ultimately illustrates how the CISG is interpreted and applied in different jurisdictions.

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  Cases and Materials on U.S. Antitrust in Global Context

  Eleanor M. Fox

  Larry Sullivan and I wrote the first edition of this casebook in the late 1980s. It was published in 1989. The year 1980 had marked a turning point in U.S. antitrust law. The heritage of the 1960s with its mission for equal opportunity was still very much with us, and Lewis D. Brandeis’ notion of a clearer path for “the little man” as well as William O. Douglas’ notion of autonomy and freedom through diversity still infused American antitrust. But these notions were quickly being overtaken. Globalization was shrinking the world; lower trade barriers meant fierce competition from abroad and new opportunities beyond borders. Efficiency became the mantra. The new paradigm for U.S. antitrust was consumer welfare—focusing on how business could gain market power and harm consumers. The new paradigm rationalized U.S. antitrust law and tended to ensure that antitrust law would help and not hurt efficiency—of firms and markets. Thus it was in the context of change that we wrote the first volume. We included much of the history and evolution of the antitrust law along with the most current cases so that the students could not only grasp the currents of the political economy but predict the direction of the law. When it came time for the second edition Larry Sullivan was already nearing the last years of his life and we were fortunate to be able to collaborate with Rudolf Peritz, who added much to the book. The second edition was published in 2004. The antitrust law was still evolving from the path of pluralism and distrust of bigness to the path of efficiency and trust in the market. Up to the last month of preparing our manuscript for the second edition, there had been only a few new Supreme Court antitrust decisions and these often favored the plaintiff; for example, Aspen Skiing, a unanimous judgment for the complainant against an exclusionary refusal to cooperate in issuing a multi-mountain ticket to all of the Aspen slopes, and Eastman Kodak, declining to uphold the district court’s grant of summary judgment for Kodak against independent servicers of Kodak equipment who had been cut off from Kodak-brand repair parts. The Kodak case, however, was decided 5-4, and the dissent by Justice Scalia was the handwriting on the wall of the approaching millennium. Just days before the printing of the second edition, the Supreme Court decided its head-turning Trinko case; and our publisher allowed us to include it—in an appendix. What else occurred in this more-than-decade between the first and second editions? In the same year as publications of our first edition, the Berlin wall fell. Most of the world became democratized. Scores of nations that had distrusted markets began to nurture markets, more or less; and almost all of these nations adopted competition (antitrust) laws. By the time of the second edition, antitrust was well on its way to becoming internationalized. Larry Sullivan passed away on October 7, 2007. His mark is deeply impressed on this book, on antitrust law in general (his treatise has been cited by the Supreme Court and other federal courts hundreds of times), and, more importantly, on the many of us who loved him and appreciated his humanism, his intellect, his Irish reconteurism, and simply his qualities as a human being. I dedicate this volume to him. Meanwhile, in the eight years since the publication of the second edition, the Supreme Court decided 11 antitrust cases, 10 in favor of the defendant, overruling precedents and resetting the perspectival compass. All of them followed the footprint of Trinko. On the world front, antitrust law has become significantly internationalized. The United States has lost some of the sheen of hegemony. U.S. antitrust and European Union competition law remain the models for the world, with EU outpacing the U.S. Scores of developing countries are injecting their needs into their competition laws, including distributional concerns and other public interests. The huge, rapidly emerging developing economies of China, India and Brazil may in some ways be setting a pace of their own. On the new economy/technology front, the world continues its pace of rapid change. Apple has sold its twenty-fifth billion iPad. Google makes 34,000 searched per second. Microsoft, the “monopolist” of the last two decades, is seeking to enlist the antitrust authorities in the U.S. and the EU to stop Google from allegedly manipulating the market in web search and expanding its power into adjacent market that might be pathways to control the future of information and communication technologies in the world. It is in this context that I write this third edition. How have I changed the book? I have reduced, but retained, historical coverage. All chapters are modernized; they include all of the latest Supreme Court cases and many instructive lower court cases. I have added a number of problems including an inspired one created by the International Competition Network—a virtual organization of the competition authorities of the world. I have retained, although reduced, excerpts from all of the old flagship cases including Alcoa and Standard Oil, and mined the philosophic premises of the Justices, highlighting the threads that have woven their way into the modern Court opinions. I have incorporated many non-U.S. references, showing contrasts and convergences and helping explain not only what U.S. antitrust law is but what it might be and what some of the rest of the world thinks it should be. I have incorporated contemporary economic thinking in an accessible and non-technical way, retaining the perspective that antitrust is law heavily influenced by generalized principles of economics, and not the other way around. My goal has been, and Larry’s was, to educate the student in the fullness of American antitrust; to show its place in domestic policy and in the world; to train the student in the analytics of contemporary antitrust law and practice, and to prepare the student to think about antitrust in the larger context, however that context might change.

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  Competition Policy and Regional Integration in Developing Countries

  Eleanor M. Fox, Josef Drexl, Mor Bakhoum, Michal S. Gal, and David J. Gerber

  This book presents a detailed study of the interface between regional integration and competition policies of selected regional trade agreements (RTAs), and the potential of regional competition laws to help developing countries achieve their development goals. The book provides insights on the regional integration experiences in developing countries, their potential for development and the role of competition law and policy in the process. Moreover, the book emphasizes the development dimension both of regional competition policies and of competition law. Although it holds many promises for developing countries, some challenges must be overcome for the process of creating a regional market and applying a competition law, to be successful. This timely book delivers concrete proposals that will help to unleash the potential of regional integration and regional competition policies, and help developing countries fully enjoy the benefits deriving from a regional market. Bringing together analysis from well-known scholars in the developed world with practical insight from scholars in countries hoping to exploit the potential of competition law, this book will appeal to academics working in the field of competition law, practitioners, policy makers and officials from developing countries, as well as those in development organisations such as UNCTAD.

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  Products Liability Law

  Mark A. Geistfeld

  Mark Geistfeld, the author of the leading textbook on products liability, an important text on tort law and dozens of scholarly articles, has class-tested the material in Products Liability Law for more than five years at NYU. He has made the study of products liability an advanced torts class that cements knowledge of fundamental tort principles while developing both specialized expertise and a deeper understanding of the torts process. Illuminating textual discussion follows a wide range of riveting cases. Unlike many casebooks that simply pose the question, Products Liability Law provides the analyses needed to address each challenging problem. Unifying the two competing conceptions of products liability, students become familiar with both approaches and develop a balanced perspective. Features: stellar authorship; leading textbook on products liability; important tort law textbook; dozens of scholarly articles; classroom-tested for five years; makes the study of products liability an advanced torts class; cements knowledge of fundamental tort principles; develops both specialized expertise and a deeper understanding of the torts process; wide range of interesting cases followed by extended textual discussion; provides analysis needed to address challenging questions, missing from most casebooks; unifies the two competing conceptions of products liability.

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  Regulation of Lawyers: Problems of Law and Ethics

  Stephen Gillers

  You’re busy. I know. Reading a preface in not high on your to-do list. But this one is written with you in mind. And short. So give me five minutes. Maybe ten. Four quick points: First, this casebook has a personality, a voice: mine. In that way, it may be unlike other casebooks. Its voice is conversational. And here and there, it takes a position directly, not only through the views of other or with rhetorical questions. Second, this book contains many problems. Some are one paragraph, others a page or more. Many are based on real dilemmas I’ve heard or read about. Mostly, the problems are dense and messy, like life. They arose yesterday or will arise tomorrow, in one form or another. Third, the books contains many short essays (a/k/a, notes). The legal ethics world (indeed, Lawyerland generally) must be mapped through stories along with doctrines. Detail offers nuance and variation and a context within which to test doctrine. Fourth, this is your second most important class. Yeah, right, you think. It’s a bold statement, and here’s why I make it. Say you become an antitrust lawyer. Your criminal procedure class will fade into a remote corner of your memory. Or if you become a criminal defense lawyer, you won’t need to know much copyright. But whatever work you do as a lawyer, you will practice what you learn in this book and the class that assigns it every day of your professional life. Other courses teach lessons that bear on a client’s legal problems. This course is about you and your work. There are two exceptions: Knowledge of these rules enables you to protect clients against misconduct of other lawyers. And representing law firms in trouble (or needing advice to avoid trouble) is a growing practice area. As you approach the starting line of your legal career, most important are the rules that constrain your behavior. You will want to know—in such areas as competence, fees, marketing, confidentiality, conflicts of interest, negotiation, and the client-lawyer relationship—what may or must you do or not do with confidence that your conduct will not land you before a disciplinary committee, create civil liability, invite court sanction, forfeit your fee, or damage your reputation. “Ethics,” while a useful tem, does not accurately describe these lessons. The law business is heavily regulated, and the regulations have grown more complex in recent decades. This has led to new terms—the law governing lawyers and the law of lawyering—lest anyone be fooled by the word “ethics” into believing that the subject is simply about how to be a good person (although there’s some of that too). Avoid two errors. First, do not believe that the right way to act—toward clients, courts, adversaries, or colleagues—will be intuitively obvious. Sure, sometimes it will be. But no one needs to teach you not to lie or steal, and certainly not with hundreds of pages of text. The rules here may be obscure; they may even be counterintuitive, and they can be subtle in application. Application in turn calls for judgment, and judgment is mostly learned through experience. Indeed, much of what lawyers do for clients is make judgments—about where the law is and is likely to go, what a particular judge or court will do in a pending litigation, and the risks of a contemplated strategy or decision. You develop that judgment across years of practice, but it begins now. Second, you don’t want to make the mistake of assuming that your employer will provide all the protection you need. Many law offices do have systems to detect and avoid mistakes and they have people to whom lawyers can turn for advice. But the best systems and resources are still not perfect, and anyway, the professional responsibility of a lawyer cannot be handed to others. Furthermore, you need to know enough about the subject to be aware when you have a problem that requires advice. A broader perspective from which to view the laws and rules that regulate lawyers looks at their effect on civil society and the administration of justice. These rules and laws help define the nature and work of the entire profession and therefore the behavior of our legal institutions and the quality of our social justice. For example, a rule that restricts ow lawyers may advertise will influence the conduct of individual lawyers. But it will also affect public awareness of legal rights and lead to price competition. A rule that prohibits or requires a lawyer to reveal a client’s confidential information to protect others from harm will influence a lawyer’s own behavior, but it may also affect what clients are willing to reveal. In short, many rules have social and political consequences (sometimes profound ones) beyond any single representation or practice. As you enter law practice, you may be more interested in such questions as “How do I behave?” and “How can I stay out of trouble?” than in asking the broader question, “What are the consequences to civil society and justice if one or another version of a particular rule is applied to America’s one million licensed lawyers? Still, the last questions is important and, if not as immediate, will surely arise in the course of your professional life. You may someday be in positions to resolve the broader questions—as manager of a law office, member of a bar committee, legislator, government lawyer, or judge. Asking about the consequences to justice and civil society if a rule is resolved one way rather than another—asking which resolution is best—engenders different, sometimes vehement, responses from practicing lawyers and the public. Why is that? In part, it is because the answers depend on political and moral values more fundamental than the “ethics” that inform various codes. And, f course, the political and moral values of different people differ. In addressing these questions, we should also try to be honest about the interests we mean to protect. Those of society generally? Those of a particular client population? The legal profession’s? Our own? Law school and law practice, it is sometimes said, encourage more rather than less self-interest in answering the questions raised here. In transition as you are, our answers may vary from what they would have been before you entered law school, and they will likely be different five years on. If you are using this book in a law school class, you are likely in Generation Y, whose members came of age after 2010. I believe you will enter a profession in greater transition than any of your predecessors in U.S. history. Three interrelated forces are buffeting the law industry: technology, globalization, and competition both from abroad and from new sources of legal advice. These forces are upsetting a lawyer regulatory system that served the United States will for a century, a system based on geography. Traditionally and still lawyers are licensed by a place and had their clients and office in the same place. But technology and globalization have facilitated the efforts of others to make money in the law industry and the ability of businesses here and abroad to profit from U.S. law work by doing work once done by U.S. lawyers at much lower cost. It is still too soon to know how the changes will play out, so there is not much we can say about them in this edition. But they are acknowledged in Chapters 12B and 14B and you must be aware of them as you plan for the future. This is the ninth edition of the book. I started on the first edition in 1982 shortly before the birth of the first of the two amazing daughters to whom all editions have been dedicated. I delivered the manuscript to the publisher a day after the birth of the second daughter in 1984. Since then, I spend an hour or two each week planning the next edition. The daughters are now out in the world but the book still resides at home. You think a lot about what a casebook is and can be when you live with one so long. The book’s primary function is to provide information, but that’s just the beginning. The minimum editorial task would allow me to pick good cases and other materials, edit them, order them logically, add interstitial notes and questions, and put the product between covers. Voila! A casebook. Of course, one must begin in this way, but if nothing more were possible (even if not required), I wonder if I would have kept at it so long. Luckily, more is possible while still serving the book’s objective—to teach the subject. For starters, we can strive for humor, variety, clarity and good writing. The enterprise will not likely support eh extended charm of a Hazlitt essay or the quirkiness of a Vonnegut novel—assuming counterfactually that I had the talent to achieve either (in which case I’d probably be in a different line of work)—but a casebook is a book, after all, and it should have an authorial presence in so far as possible. That’s what makes the books mine. The legal profession is a culture of storytellers and stories. Harrison Tweed (1885-1969), a president of the New York City Bar Association, once said: “I have a high opinion of lawyers. With all their faults, they stack up well against those in every other occupation or profession. They are better to work with or play with or fight with or drink with than most other varieties of mankind.” These words are inscribed on a wall at the Association’s headquarters. As a young lawyer, I thought Tweed was overly effusive, f not downright sanctimonious. At that time, I was inclined to agree with the character in George Bernard Shaw’s play The Doctor’s Dilemma who said that “all professions are conspiracies against the laity.” To some extent, I still find Tweed excessive and Shaw’s character apt, even if hyperbolic. But now I think Tweed had a point. The profession and its members are fascinating to study, and its stories are fascinating to hear. As with the study of any culture, understanding the bar requires density of information. We must know a thousand small details about the actual life within the society of lawyers, not merely a few doctrines and theories, if we are going to understand Lawyerland truly. I have tried to include some of those details here. I invite your views on the book. What was dull? What worked well? How can the book be improved? Have you encountered a quote or story somewhere (tru or finctional) that you think nicely highlights an issue? This edition is indebted to past users who alerted me to interesting sources. Send e-mail to stephen.gillers@nyu.edu. All comments will be gratefully acknowledged. Okay. My ten minutes are up. Onto Chapter 1.

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  Regulation of Lawyers: Statutes and Regulations

  Stephen Gillers, Roy D. Simon, and Andrew M. Perlman

  Prior edition of Regulation of Lawyers: Statutes and Regulations (Concise ed).

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  Regulation of Lawyers: Statutes and Regulations

  Stephen Gillers, Roy D. Simon, and Andrew M. Perlman

  Prior edition of Regulation of Lawyers: Statutes and Regulations.

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  Understanding Social Action, Promoting Human Rights

  Ryan Goodman, Derek Jinks, and Andrew K. Woods

  In Understanding Social Action, Promoting Human Rights, editors Ryan Goodman, Derek Jinks, and Andrew K. Woods bring together a stellar group of contributors from across the social sciences to apply a broad yet conceptually unified array of advanced social science research concepts to the study of human rights and human rights law. The book focuses on three key methodological and substantive areas: actors and their biases; groups and group dynamics, via political economy and social network analysis; and communication, covering health communications, media studies, and social norms research. Their goal is to provide a richer and more integrated approach to the study and practice of human rights, which necessarily requires a more comprehensive and practical theory of social action. Over the last 20 years, the social scientific understanding of human behavior has taken a significant leap forward. Important advances in several fields have increased the complexity and accuracy of prevailing models of individual actors, group dynamics, and communication. Yet too few of the key insights of that scholarship have been incorporated into the theory or practice of human rights promotion. With this book, legal scholars Ryan Goodman, Derek Jinks, and Andrew K. Woods begin the process of incorporation, by collecting research from a broad set of disciplines and underscoring its implications for human rights scholarship and practice. By focusing on nonlegal, empirical scholarship that touches on norm creation, diffusion, and institutionalization, the book presents a broad range of interdisciplinary insights relevant to human rights scholars and practitioners. The volume introduces work from multiple disciplines including economics (Herb Gintis), communications (Robert C. Hornik), social psychology (Jonathan Baron; Deborah Prentice; Paul Slovic and David Zionts), moral biology (John Mikhail), political science (Margaret Levi, Tom R. Tyler, and Audrey Sacks), social network analysis (David Lazer), and negotiation theory (Lee Ross, Byron Bland, and Brenna Powell).

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  On Sacrifice

  Moshe Halbertal

  The idea and practice of sacrifice play a profound role in religion, ethics, and politics. In this brief book, philosopher Moshe Halbertal explores the meaning and implications of sacrifice, developing a theory of sacrifice as an offering and examining the relationship between sacrifice, ritual, violence, and love. On Sacrifice also looks at the place of self-sacrifice within ethical life and at the complex role of sacrifice as both a noble and destructive political ideal. In the religious domain, Halbertal argues, sacrifice is an offering, a gift given in the context of a hierarchical relationship. As such it is vulnerable to rejection, a trauma at the root of both ritual and violence. An offering is also an ambiguous gesture torn between a genuine expression of gratitude and love and an instrument of exchange, a tension that haunts the practice of sacrifice. In the moral and political domains, sacrifice is tied to the idea of self-transcendence, in which an individual sacrifices his or her self-interest for the sake of higher values and commitments. While self-sacrifice has great potential moral value, it can also be used to justify the most brutal acts. Halbertal attempts to unravel the relationship between self-sacrifice and violence, arguing that misguided self-sacrifice is far more problematic than exaggerated self-love. In his exploration of the positive and negative dimensions of self-sacrifice, Halbertal also addresses the role of past sacrifice in obligating future generations and in creating a bond for political associations, and considers the function of the modern state as a sacrificial community.

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  Civil Procedure

  Samuel Issacharoff

  This book analyzes legal procedure as part of a complicated interaction between private ordering and public intervention. Modern society brings people together in a variety of settings and injects an active state presence into everyday activities. Inevitably there are disputes and they are settled based on social norms or on an understanding of what is right and what is wrong; what is contestable and what is not. This private ordering of responsibility occurs against a backdrop of what might occur were the matter to be taken to the more costly system of public dispute resolution. In this sense, disputants outside the legal system are said to be bargaining in the shadow of the law.

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  The Law of Democracy: Legal Structure of the Political Process

  Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes

  This text provides a systematic description of the legal construction of American democracy. Many of the revisions to this edition concern making note material more concise and reducing coverage of issues that have become less important as the frontiers of the field moved in new directions. This fourth edition covers the historical development of the individual right to vote; current struggles over racial gerrymandering; the relationship of the state to political parties; the constitutional and policy issues surrounding campaign-finance reform; and the tension between majority rule and fair representation of minorities in democratic bodies.

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  Criminal Law and Its Processes: Cases and Materials

  Sanford H. Kadish, Stephen J. Schulhofer, Carol S. Steiker, and Rachel E. Barkow

  Highly respected authorship defines Criminal Law and Its Processes: Cases and Materials. Sanford H. Kadish, Stephen J. Schulhofer, Carol S. Steiker, and new co-author Rachel E. Barkow are nationally recognized scholars. Their cohesive intellectual framework views the law as an instrument of social control, providing an analytical tool with which students can interpret and understand doctrine. Criminal Law and Its Processes: Cases and Materials focuses on developing an understanding of principles and rules applicable to all crimes, rather than the detailed and disjointed elements of any particular crime. Cases-and-notes pedagogy, with excerpted materials, questions, and problems, illuminate the material. Problems enhance students' understanding of the basic principles by testing their applications and interactions in the context of particular offenses. The Ninth Edition preserves the continuity with its predecessors and makes little fundamental change in organization or coverage, retaining nearly all the principal teaching cases, with recent cases and illustrations added. The text has been carefully edited throughout to enhance the transparency of the organization and accessibility of the notes and questions. Text has been added that guides students--before and after main cases--to understand what those cases are designed to illustrate. Overall, the book features increased clarity and ease of teaching while preserving the book's challenging and sophisticated content. A completely reorganized and revised chapter on group crime includes more student-friendly treatment of accomplice liability and conspiracy that will facilitate the mastery of basic doctrine while emphasizing important policy questions. A new section on punishing corporations for criminal conduct includes an analysis of deferred prosecution and non-prosecution agreements. The updated theft chapter explores the important modern crimes of honest services fraud and identity theft. New problems also test students' understanding of traditional theft offenses as applied to modern technology and intellectual property. The chapter on rape has been dramatically revised with current examples of debates over force and consent as well as new notes on male rape victims and human trafficking. Revised coverage of the death penalty provides a balanced treatment of the issue, incorporates the latest empirical research, and offers new notes on the potential causes of racial discrimination. An updated chapter on homicide includes a completely new section on felony murder. Also revised is the treatment of proportionality; it includes recent Supreme Court case law under the Eighth Amendment and challenges to life without the possibility of parole sentences. The question of what to punish is now explored through the lens of teenage bullying. Finally, new sentencing materials have been introduced, including a case study of Bernie Madoff's sentencing.

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  Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell

  Arthur R. Miller and Michael H. Davis

  Miller and Davis’ Intellectual Property, Patents, Trademarks, and Copyright in a Nutshell presents the fundamentals of trademark and copyright laws. Authors Michael Davis and famed Harvard professor Arthur Miller provide authoritative coverage on the foundations of patent protection, patentability, and the patenting process. The text addresses: Torts and property Antitrust and government regulation Concept of federalism State and federal conflicts.

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  Mind and Cosmos: Why the Materialist Neo-Darwinian Conception of Nature Is Almost Certainly False

  Thomas Nagel

  The modern materialist approach to life has conspicuously failed to explain such central mind-related features of our world as consciousness, intentionality, meaning, and value. This failure to account for something so integral to nature as mind, argues philosopher Thomas Nagel, is a major problem, threatening to unravel the entire naturalistic world picture, extending to biology, evolutionary theory, and cosmology. Since minds are features of biological systems that have developed through evolution, the standard materialist version of evolutionary biology is fundamentally incomplete. And the cosmological history that led to the origin of life and the coming into existence of the conditions for evolution cannot be a merely materialist history, either. An adequate conception of nature would have to explain the appearance in the universe of materially irreducible conscious minds, as such. Nagel's skepticism is not based on religious belief or on a belief in any definite alternative. In Mind and Cosmos, he does suggest that if the materialist account is wrong, then principles of a different kind may also be at work in the history of nature, principles of the growth of order that are in their logical form teleological rather than mechanistic. In spite of the great achievements of the physical sciences, reductive materialism is a world view ripe for displacement. Nagel shows that to recognize its limits is the first step in looking for alternatives, or at least in being open to their possibility.

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  The Common Law in Colonial America

  William E. Nelson

  William E. Nelson's first volume of the four-volume The Common Law of Colonial America (2008) established a new benchmark for study of colonial era legal history. Drawing from both a rich archival base and existing scholarship on the topic, the first volume demonstrated how the legal systems of Britain's thirteen North American colonies-each of which had unique economies, political structures, and religious institutions -slowly converged into a common law order that differed substantially from English common law. The first volume focused on how the legal systems of the Chesapeake colonies--Virginia and Maryland--contrasted with those of the New England colonies and traced these dissimilarities from the initial settlement of America until approximately 1660. In this new volume, Nelson brings the discussion forward, covering the years from 1660, which saw the Restoration of the British monarchy, to 1730. In particular, he analyzes the impact that an increasingly powerful British government had on the evolution of the common law in the New World. As the reach of the Crown extended, Britain imposed far more restrictions than before on the new colonies it had chartered in the Carolinas and the middle Atlantic region. The government's intent was to ensure that colonies' laws would align more tightly with British law. Nelson examines how the newfound coherence in British colonial policy led these new colonies to develop common law systems that corresponded more closely with one another, eliminating much of the variation that socio-economic differences had created in the earliest colonies. As this volume reveals, these trends in governance ultimately resulted in a tension between top-down pressures from Britain for a more uniform system of laws and bottom-up pressures from colonists to develop their own common law norms and preserve their own distinctive societies. Authoritative and deeply researched, the volumes in The Common Law of Colonial America will become the foundational resource for anyone interested the history of American law before the Revolution. Professor Nelson: provides authoritative account of common law in colonial America; synthesizes archival sources and current scholarship to create cohesive historical narrative.

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  The Knockoff Economy: How Imitation Sparks Innovation

  Kal Raustiala and Christopher J. Sprigman

  From the shopping mall to the corner bistro, knockoffs are everywhere in today's marketplace. Conventional wisdom holds that copying kills creativity, and that laws that protect against copies are essential to innovation--and economic success. But are copyrights and patents always necessary? In The Knockoff Economy, Kal Raustiala and Christopher Sprigman provocatively argue that creativity can not only survive in the face of copying, but can thrive. The Knockoff Economy approaches the question of incentives and innovation in a wholly new way--by exploring creative fields where copying is generally legal, such as fashion, food, and even professional football. By uncovering these important but rarely studied industries, Raustiala and Sprigman reveal a nuanced and fascinating relationship between imitation and innovation. In some creative fields, copying is kept in check through informal industry norms enforced by private sanctions. In others, the freedom to copy actually promotes creativity. High fashion gave rise to the very term "knockoff," yet the freedom to imitate great designs only makes the fashion cycle run faster--and forces the fashion industry to be even more creative. Raustiala and Sprigman carry their analysis from food to font design to football plays to finance, examining how and why each of these vibrant industries remains innovative even when imitation is common. There is an important thread that ties all these instances together--successful creative industries can evolve to the point where they become inoculated against--and even profit from--a world of free and easy copying. And there are important lessons here for copyright-focused industries, like music and film, that have struggled as digital technologies have made copying increasingly widespread and difficult to stop. Raustiala and Sprigman's arguments have been making headlines in The New Yorker, the New York Times, the Financial Times, the Boston Globe, Le Monde, and at the Freakonomics blog, where they are regular contributors. By looking where few had looked before--at markets that fall outside normal IP law--The Knockoff Economy opens up fascinating creative worlds. And it demonstrates that not only is a great deal of innovation possible without intellectual property, but that intellectual property's absence is sometimes better for innovation.

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  Environmental Law and Policy: Problems, Cases, and Readings

  Richard L. Revesz

  This casebook emphasizes environmental policy and the structure and details of the federal environmental statutes. It focuses students’ attention on how tradeoffs between environmental goals and social goals are resolved in different and difficult contexts. The book pays close attention to the political context in which regulation takes place, looking at the impact of our federal government, interest groups and the role of administrative agencies in the regulatory process. It focuses on current efforts to address climate change and regulate greenhouse gases through existing statutory frameworks. The casebook has substantial introductions and extensive notes and questions to guide classroom discussion.

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  Law and the American Health Care System

  Sara Rosenbaum, David M. Frankford, Sylvia A. Law, and Rand E. Rosenblatt

  This book examines the impact of law on the American healthcare system. It covers: access to, and nondiscrimination in, the provision of healthcare; the regulation of healthcare insurance, financing, and quality; the business of healthcare under antitrust, tax, and fraud and abuse laws. The book strives to link extensive legal discussion to the broader policy and social context that ultimately shapes healthcare in America. With discussion of the Patient Protection and Affordable Care Act throughout, the book has been designed to serve both law schools and health and public policy programs.

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  More Essential Than Ever: The Fourth Amendment in the Twenty-First Century

  Stephen J. Schulhofer

  When the states ratified the Bill of Rights in the eighteenth century, the Fourth Amendment seemed straightforward. It requires that government respect the right of citizens to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Of course, “papers and effects” are now digital and thus more vulnerable to government spying. But the biggest threat may be our own weakening resolve to preserve our privacy. In this potent new volume in Oxford's Inalienable Rights series, legal expert Stephen J. Schulhofer argues that the Fourth Amendment remains, as the title says, more essential than ever. From data-mining to airport body scans, drug testing and aggressive police patrolling on the streets, privacy is under assault as never before--and we're simply getting used to it. But the trend is threatening the pillars of democracy itself, Schulhofer maintains. “Government surveillance may not worry the average citizen who reads best-selling books, practices a widely accepted religion, and adheres to middle-of-the-road political views,” he writes. But surveillance weighs on minorities, dissenters, and unorthodox thinkers, “chilling their freedom to read what they choose, to say what they think, and to associate with others who are like-minded.” All of us are affected, he adds. “When unrestricted search and surveillance powers chill speech and religion, inhibit gossip and dampen creativity, they undermine politics and impoverish social life for everyone.” Schulhofer offers a rich account of the history and nuances of Fourth Amendment protections, as he examines such issues as street stops, racial profiling, electronic surveillance, data aggregation, and the demands of national security. The Fourth Amendment, he reminds us, explicitly authorizes invasions of privacy--but it requires justification and accountability, requirements that reconcile public safety with liberty. Combining a detailed knowledge of specific cases with a deep grasp of Constitutional law, More Essential than Ever offers a sophisticated and thoughtful perspective on this important debate.

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  "Partly Laws Common to All Mankind": Foreign Law in American Courts

  Jeremy Waldron

  Should judges in United States courts be permitted to cite foreign laws in their rulings? In this book Jeremy Waldron explores some ideas in jurisprudence and legal theory that could underlie the Supreme Court’s occasional recourse to foreign law, especially in constitutional cases. He argues that every society is governed not only by its own laws but partly also by laws common to all mankind (ius gentium). But he takes the unique step of arguing that this common law is not natural law but a grounded consensus among all nations. The idea of such a consensus will become increasingly important in jurisprudence and public affairs as the world becomes more globalized.

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  The Harm in Hate Speech

  Jeremy Waldron

  Every liberal democracy has laws or codes against hate speech—except the United States. For constitutionalists, regulation of hate speech violates the First Amendment and damages a free society. Against this absolutist view, Jeremy Waldron argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities. Causing offense—by depicting a religious leader as a terrorist in a newspaper cartoon, for example—is not the same as launching a libelous attack on a group’s dignity, according to Waldron, and it lies outside the reach of law. But defamation of a minority group, through hate speech, undermines a public good that can and should be protected: the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home. Free-speech advocates boast of despising what racists say but defending to the death their right to say it. Waldron finds this emphasis on intellectual resilience misguided and points instead to the threat hate speech poses to the lives, dignity, and reputations of minority members. Finding support for his view among philosophers of the Enlightenment, Waldron asks us to move beyond knee-jerk American exceptionalism in our debates over the serious consequences of hateful speech.