Faculty Books & Edited Works

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  Labor Law: Cases, Materials, and Problems

  Michael C. Harper, Samuel Estreicher, and Joan Flynn

  This text continues to impress with its outstanding pedagogy and comprehensive nature: - offers a comprehensive and challenging view of the field of labor law, highlighting issues of reform, economic and labor theory, and the respective roles of the NLRB, arbitrators, and federal and state courts - places special emphasis on accessibility, manifested in clear, streamlined case editing (which preserves authorities used by the courts); lucid explanatory textual material; and clear and pointed narratives, notes, and questions throughout - integrates current labor law scholarship in its exposition of NLRB and court decisions and identification of cutting-edge policy issues The Sixth Edition also covers many significant developments since the publication of the previous edition, including: - a new chapter, Obtaining Bargaining Authority Outside of the NLRB Election Process, with extensive coverage of the legal issues arising out the labor movement's increasing reliance on card-check and neutrality agreements bypassing the Labor Board's processes - treatment of the most recent NLRB and court decisions and pending cases, including: - Oakwood Healthcare, Inc. (the nurses's supervisory authority cases) - H.S. Care LLC (the Board's new teaching on units containing contingent workers) - IBM Corp. (the Board's revisiting of the issue of Weingarten rights for non-union workers) - Dana-Metaldyne (the Board's recognition bar in the context of card-check agreements) - partial lockout decisions in the Board and the Courts of Appeals - Dana II (exploring the extent to which unions and employers can establish principles for bargaining before unions obtain acard majority) - Preemption challenges to neutrality ordinances - Clarett v. NFL (the last gasp to antitrust challenges to sports league rules?) - new rules issued by the Dept. of Labor expanding the financial reporting obligations of unions - Problems Guide for professors containing problems for each chapter to test student understanding, accompanied by suggested answers/approaches - PowerPoint presentations for each chapter.

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  The Matador’s Cape: America’s Reckless Response to Terror

  Stephen Holmes

  The Matador's Cape delves into the causes of the catastrophic turn in American policy at home and abroad since 9/11. In a collection of searing essays, the author explores Washington's inability to bring 'the enemy' into focus, detailing the ideological, bureaucratic, electoral and (not least) emotional forces that severely distorted the American understanding of, and response to, the terrorist threat. He also shows how the gratuitous and disastrous shift of attention from al Qaeda to Iraq was shaped by a series of misleading theoretical perspectives on the end of deterrence, the clash of civilizations, humanitarian intervention, unilateralism, democratization, torture, intelligence gathering and wartime expansions of presidential power. The author's breadth of knowledge about the War on Terror leads to conclusions about present-day America that are at once sobering in their depth of reference and inspiring in their global perspective.

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  The WTO System: Law, Politics & Legitimacy

  Robert L. Howse

  No one with a serious professional or intellectual interest in the WTO can ignore the essays in this volume, many of which have been major flashpoints of controversy and debate in the field--such as the attack on the product/process distinction and the critique of the constitutional perspective on the WTO, to give but two examples. Written against the backdrop of the post-Seattle legitimacy crisis of the WTO, these works consider how the doctrine and method of WTO adjudication have responded, especially in sensitive areas such as trade and environment, and health and safety regulation.

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  The Law of Democracy: Legal Structure of the Political Process

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

  The Law of Democracy offers a systematic exploration of the legal construction of American democracy. The book brings together a cluster of issues in law regulating the design of democratic institutions, and the book employs a variety of methods, historical, comparative, theoretical, doctrinal to explore foundational questions in the theory and practice of democracy. Covered issues include 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, and Carol S. Steiker

  This edition, while preserving continuity with its predecessors, introduces several changes in the content and sequencing of the material. We have retained the basic organization, tone, and perspective of the book. We have replaced relatively few of the major cases and have maintained the intellectual framework and concrete questions and problems that so many of our colleagues have found helpful vehicles for successful teaching. This Preface discusses the basic goals of the course before turning to the specific changes for this edition. Why substantive criminal law? We conceive of a criminal law course as serving the ends of both general legal education and training in the criminal law in particular. There are, as we see it, three chief ways the course can contribute to the general legal education of the law student. One way is to provide a vehicle for the close reading of statutory texts—primarily the Model Penal Code, but also state statutory formulations—to help balance the emphasis on case law in the first-year curriculum. The second way is to introduce the student to the operation of a system of rules and principles designed to apportion blame and responsibility in accordance with our moral norms, subject to the practical restraints of a functioning system. While the criminal law is the primary institution serving this function, fault and wrongdoing each play a role in determining liability throughout the law. Hence some understanding of the analytical elements in assessing blame for a person’s conduct or for the conduct of another, and of the concepts of excuse and justification, is an important element in a lawyer’s legal education. The third way the criminal law course serves the purpose of general legal education is by enlarging insight into the potentialities and limitations of the law as an instrument of social control. We have in mind the hard problems encountered in using the law for this purpose: the difficulty of giving legal form to the compromises made necessary when goals conflict; the creation of institutional arrangements—judicial and administrative—appropriate to the goals sought; the limitations—moral and practical—on the use of the law as a means of social control; the relation of legal controls to other social processes. The substantive criminal law provides an unusually suitable introduction to these pervasive problems of the law. The ends criminal law serves involve social and human values of the highest order. It means, entailing the imposition of brute force on the lives of individuals, are potentially the most destructive and abusive to be found within the legal system. The issues it raises and the setting in which it raises them are compelling and vivid. Its institutions are acutely controversial and often controverted. And one of its underlying themes is the momentous issue of the reconciliation of authority and the individual. As Professor Herbert Wechsler has written: “Whatever views one holds about the penal law, no one will question it importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instruments of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community or for the individual.” What of the course’s narrower purpose of training students in the criminal law in particular? Here there are two main pedagogic objectives. One is to furnish a solid foundation for those who will, in greater of lesser degree, participate directly in the processes of the criminal law. This foundation does not require mastery of the full range of technical skills and information held by the practicing criminal lawyer, judge or administrator, but rather the development of confidence in handling principles and rules—judge-made or statutory—through knowledge about the larger implications of doctrines and institutions of the criminal law. The second purpose is to crate in law school graduates who will have little occasion to practice criminal law and understanding of the problems of the criminal law. As influential members of their communities—and more directly as judges, legislators, or teachers—lawyers versed in the principles of criminal law can bring an informed intelligence to the challenge of solving some of the most vexing problems of our times. Revisions for the eighth edition. As mentioned, this edition maintains the organization, intellectual perspectives, and pedagogical tools that have proved successful in previous editions. At the same time, we have strived throughout to enhance the transparency of the book’s organization and the accessibility of its notes and questions, in order to provide greater clarity and ease of teaching. Beyond these essentially stylistic goals, we have had in mind several substantive objectives. The first is to feature prominently, both in organization and content, the problem of statutory interpretation, an issue that is so often at the threshold of analysis in criminal law cases. Second, we have aimed to give more systematic attention to the vocabulary and doctrine of the common law, distinguishing it more specifically from that of the Model Penal Code framework. Third, the ever-growing complexity and importance of capital punishment jurisprudence have led us to provide a revised and expanded section on the death penalty. Fourth and relatedly, we have concluded that a modern criminal law course must give more attention to the growing importance of federal criminal law and the complex new offenses used to embellish traditional common law concepts. Attempt laws, for example, are supplemented by stalking statutes, and the principles of conspiracy and complicity law are supplemented by state and federal RICO statutes and by increasingly broad money laundering statutes. Detailed treatment of these complicated laws is of course impossible and unnecessary in an introductory course, but we believe that brief exposure to the material, tightly edited will give students a better appreciation of the modern workings of the criminal justice system. Fifth, for similar reasons, we believe that awareness of developments in the field of international human rights should become more prominent in the education of American lawyers. Again, without seeking to examine this complex topic systematically, we believe it is possible and desirable to give students an introduction to this increasingly significant area through one example (the reap case of M.C. v. Bulgaria), along with shorter references elsewhere in the book. Sixth, we have sought to make the subject of sentencing both comprehensible and teachable within the framework of an introductory criminal law course. The growing complexity of sentencing procedure and sentencing guidelines poses a dilemma for an introductory course. The subject is too important to be ignored but too complex to be covered comprehensively. We have sought to strike an appropriate balance by providing a concise introduction to the issues early in the book (briefly covering jury sentencing in Chapter 1 and sentencing procedures in Chapter 2), while offering in Chapter 10—for teachers who have the time and inclination—a more detailed treatment that includes an in-depth look at the federal sentencing guidelines and an examination of the complex sentencing implications of constitutional jury trial principles. Where classroom time is too limited for this more extensive examination, the brief introductory treatment in Chapters 1 and 2 should suffice to illustrate for students the procedural issues, as well as the tough jurisprudential issues underlying them. Our final and perhaps most important goal for this revision has been to provide an innovative supplement to the traditional substantive criminal law agenda—a systematic treatment of the phenomenon of discretion. Discretion is never far below the surface of any issue in criminal law, and it often enters the discussion, intentionally or unexpectedly, at many points throughout the course. Discretion has always been important, but its significance has grown exponentially over the past two decades, to the point where we now believe that the introductory course should offer students a systematic examination of its dynamics and implications. With that goal in mind, the Eighth Edition introduces a new chapter devoted to discretion, with detailed treatment of prosecutorial discretion, plea bargaining, and discretion in the sentencing process. The chapter does not deal with criminal procedure in the conventional sense; rather, its focus is on the quintessentially substantive problem of understanding the criteria (or lack of criteria) by which culpability and punishment are determined in contemporary America. In the procedural sections (Chapter 1), we have shortened the materials but have retained those fundamentals of criminal trail procedure that we consider essential for understanding the issue in substantive criminal law (rules of evidence, burden of proof, presumptions, and the role of the jury). These topics can now be covered in just two or three hours. We believe that treatment of this material at the outset of the course adds greatly to the student’s appreciation of the concrete setting in which substantive law issues arise and the practical considerations that often influence those debates. The themes of this section are central to the study and practice of law, and we believe that students can profit from exposure to these themes early and often in their legal education. In the substantive sections we have updated the cases, added Notes and Problems dealing with issues of current concern, and done some reorganization of the material. For example, Chapter 4 (Rape) has been updated to cover many newly prominent issue, as well as to permit sustained attention to statutory drafting and reform. In Chapter 3 (The Elements of Just Punishment), consistent with our goal of focusing more prominently on issue of statutory interpretation, we have changed the order of the three principal sections. Chapter 3 now begins with Legality (a section with expanded treatment of statutory interpretation), and then turns to Proportionality (a brief section that can usually be covered in a single class hour). We believe that Chapter 3 can be better paced by considering these shorter and more preliminary topics first, before turning to Culpability, a subject that encompasses many detailed issue that typically require extended treatment. Teachers who prefer to begin with Culpability can of course move directly to that section. Among the book’s new principal cases are the Supreme Court’s important decisions in Lawrence v. Texas (criminalization of private consenting sexual conduct), Atkins v. Virginia (capital punishment), Clark v. Arizona (diminished capacity), and Blakely v. Washington (sentencing); the House of Lords’ landmark decision in B (a Minor) v. D.P.P. (mens rea); and the European Court of Human Rights’ groundbreaking decision in M.C. v. Bulgaria (rape). As in previous editions, the substantive materials continue to focus on imparting an understanding of what is often called the “general part” of the criminal law—that is, those basic principles and doctrines that come into play across the range of specific offenses (for example, actus reus, mens rea, and the various justifications and excuses). We believe that mastery of the detailed elements of many particular crimes is not an appropriate goal for a basic criminal law course. Nevertheless, we have found that understanding of the basic principles is enhanced by testing their applications and interactions in the context of particular offenses. Accordingly, we examine in detail three offense categories: rape (Chapter 4), homicide (Chapter 5), and theft (Chapter 9). The chapter on rape provides an opportunity to focus on the definitional elements of a major crime in a context that has become the focus of acute controversy because of changing perceptions and changing social values. The theme of the homicide chapter is the task of legislative grading of punishment in a particularly challenging area. The theft chapter explores the significance of history and the continued impact of old doctrinal categories on the resolution of thoroughly modern difficulties in defining the boundaries of the criminal law.

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

  Arthur R. Miller and Michael H. Davis

  Authors Michael Davis and famed Harvard professor Arthur Miller provide authoritative coverage on the foundations of patent protection, patentability, and the patenting process. Presents the fundamentals of trademarks and copyright laws. Text further addresses torts and property, antitrust and government regulation, concepts of federalism and state, and federal conflicts.

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  Taxes, Spending, and the U.S. Government's March Toward Bankruptcy

  Daniel N. Shaviro

  The United States is moving toward a possible catastrophic fiscal collapse. The country may not get there, but the risk is unmistakable and growing. The 'fiscal language' of taxes, spending, and deficits has played a huge and under appreciated role in the decisions that have pushed the nation in this dangerous direction. Part of the problem is that by focusing only on the current year, deficits permit politicians to ignore what is looming down the road. The bigger problem lies in the belief, shared by people on the left and the right alike, that 'tax cuts' and 'spending cuts' lead to smaller government, when in fact the characterization of any new policy as a change in 'taxes' or in 'spending' is purely a matter of labeling. This book proposes a better fiscal language for US budgetary policy, rooted in economic fundamentals such as wealth distribution and resource allocation in lieu of 'taxes' and 'spending'.

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  International Aspects of U.S. Income Taxation

  John P. Steines Jr.

  This book addresses international aspects of U.S. tax law—the rules that govern U.S. taxation of U.S. activity by foreign persons and foreign activity by U.S. persons. It is an outgrowth of materials I have prepared for various courses in international taxation offered in the LL.M. program in taxation at New York University School of Law over the last twenty years. Though primarily attended by LL.M. students from the United States and numerous foreign countries, J.D. students typically also enroll in the courses, and there is no reason why the book may not be used with either group of students. The book is informed not only by teaching experience, but also by my experience practicing international tax law. I have tried to cover not only what is academically interesting, but also what is practical and important to tax practitioners in the private and public sectors. International tax draws from many sources and is exceedingly difficult. The book is designed to capture within its covers all that a student needs (other than the Internal Revenue Code and Treasury Regulations) to gain a sophisticated understanding of the field. There are many fine primers and treatises on international tax, but the rules are so intricate that students, who rarely have time to read outside sources, learn best by focusing on the primary material. My observation is that it is desirable that students studying international tax have prior or contemporaneous academic or practical exposure to corporate tax and at least passing familiarity with partnership tax. Each section of the book begins with carefully selected reading assignments in the Code and Regulations, followed by introductory “Notes” and then primary and secondary materials (cases, rulings, studies, etc.). In order to illustrate the effect of treaties, the reading assignments often include provisions of the U.S. Treasury Model Treaty and the treaty between the United States and the Netherlands, which are reproduced in the Appendix. Most sections conclude with a problem, which may be used as a vehicle for class lecture or discussion, designed to text understanding of the material in as practical a setting as brief hypothetical patterns permit. The Notes provide introductory explanation and probe policy and practical issues raised only peripherally or obscurely by the other assigned reading material. Though primarily intended as a teaching resource, the book may also serve as a research and practice tool for practitioners. The Notes, which cite numerous cases, administrative materials, and law review articles, provide overview and analysis of most relevant practice areas and are an entry point to numerous research topics. In that sense the Notes function as a concise analytical compendium, with more depth than a primer but not as exhaustive as a treatise. A table of contents follows immediately and a table of authorities and index are at the end of the book. The book, which is now in the third edition, reflects developments through July 1, 2007. Since the second edition, which reflected the extensive international provision of the American Jobs Creation Act of 2004, there have been significant developments, mostly new regulations, in virtually all of the major fields. I will mention some of the highlights. On inbound matters, several treaties have adopted zero withholding on subsidiary-to-parent dividends and there is a new U.S. Model Treaty, which broaches the OECD project on attribution of profits to a permanent establishment and how the transfer pricing approach embraced by the project meshes with existing treaties. There are new transfer pricing regulations governing services and intangibles and proposed regulations on cost sharing, with global securities dealing regulations on the way. A huge transfer pricing dispute over inbound marketing was settled and important conflicts are in the pipeline, and advance pricing agreements continue to roll out. In the foreign tax credit area, new regulations govern partnership allocations of credits, and controversial proposed regulations address “technical taxpayer” issues arising in group consolidation regimes and reverse hybrid structures and “voluntary” taxes generated in duplicative tax benefit arbitrage structures. The baskets are now down to two. The status of dual charter companies has been cleared up in regulations. In subpart F, new Section 654(c)(6)’s look-through rule has had a significant effect. Contract manufacturing regulations are expected soon and the government has announced that the substantial assistance piece of the foreign base company services rules will be significantly curtailed. There are also new proposed regulations on previously taxed income. In cross-border mergers and acquisitions, new regulations authorize mergers involving foreign companies, detail numerous intricacies in Section 367, and spell out the nettlesome rules on carryover of attributes and preservation of Section 1248 potential in assets reorganizations. Temporary regulations provide useful guidance on inversion transactions. Extensive regulations on dual consolidated losses were adopted, as were proposed regulations taking a very different approach to branch currency transactions. It has been a very busy two years for regulations writers.

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  Cosmopolitanism: Ethics in a World of Strangers

  Kwame Anthony Appiah

  Draws on a wide range of disciplines, including history, literature, and philosophy, to examine the imaginary boundaries people have drawn around themselves and other cultures and to challenge people to redraw those boundaries and appreciate the connections between people of different cultures, religions, and nations. "In an age of Al Qaeda--of terror and insurgent fundamentalists--we have grown accustomed to thinking of the world as divided among warring creeds and cultures, separated from one other by chasms of incomprehension. In Cosmopolitanism, Kwame Anthony Appiah, one of the world's leading philosophers, challenges us to redraw these imaginary boundaries, reminding us of the powerful ties that connect people across religions, cultures, and nations... and of the deep conflicts within them. Finding his philosophical inspiration in the Greek Cynics of the fourth century BC, who fist articulated the cosmopolitan ideal--that all human beings were fellow citizens of the world--Appiah reminds us that cosmopolitanism underwrote some of the greatest moral achievements of the Enlightenment, including the 1789 declaration of the 'Rights of Man' and Kant's proposal for a 'league of nations.' In showing us how modern philosophy has led us astray, Appiah also draws on his own experiences, growing up as the child of an English mother and a father from Ghana in a family spread across four continents and as many creeds. Whether he's recalling characters from a second-century Roman comedy or a great nineteenth-century novel or reliving feasts at the end of Ramadan with his Moslem cousins in the kingdom of Ashanti, Appiah makes vivid the vision his arguments defend. These stories also illuminate the tough questions that face us: How is it possible to consider the world a moral community when there's so much disagreement about the nature of morality? How can you take responsibility for every other life on the planet and still live your own life? Appiah explores such challenges to a global ethics as he develops an account of cosmopolitanism that surrounds them. The foreignness of foreigners, the strangeness of strangers: these things are real enough, but Appiah suggests that intellectuals and leaders, on the left and the right, have wildly exaggerated their significance. He scrutinizes the treacly celebration of 'diversity,' the hushed invocations of the 'other,' and brow-furrowing talk about 'difference.' In developing a cosmopolitanism for our times, he defends a vision of art and literature as a common human possession, distinguishes the global claims of cosmopolitanism from those of its fundamentalist enemies, and explores what we do, and do not, owe to strangers. This deeply humane account will make it harder for us to think of the world as divided between the West and the Rest, between locals and moderns, between Us and Them.

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  Administrative Law and Regulatory Policy: Problems, Text, and Cases

  Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, and Adrian Vermeule

  The casebook is highly respected for its many strengths: - stellar authorship - logical organization that reveals the interaction between doctrine and procedure, as well as bureaucratic and political factors in play - notes and problems that systematically survey regulation, exploring not only prices and entry, but also health, safety, and the environment - historical background material on the rise of regulation and the role of the New Deal in changing American government - coverage of economic aspects of regulatory control, examining the regulatory decision-making process through cost-benefit analysis - comprehensive Teacher's Manual that offers detailed advice and answers to problems Changes for the Sixth Edition reflect both legal developments and classroom experience: - new Supreme Court cases, including those involving the war on terrorism - new treatment of the relationship between administrative law and the war on terror - clearer explication of the Chevron problem and recent developments in the theory and practice of judicial review of agency action - new materials on national security tradeoffs, environmental protection, and telecommunications considered in exploring the relationship between administrative law and regulatory policy - expanded treatment of the foundations of the modern regulatory state, including the debate between standard economic theory and behavioral economics - additional discussion of separation of powers questions -- and the role of the courts in responding to them.

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  The State After Communism: Governance in the New Russia

  Timothy J. Colton and Stephen Holmes

  The Soviet dictatorship was a strong state, committed to dominating and transforming society in the name of a utopian ideology. When the communist regime crumbled and the post-Soviet countries committed to democracy, most observers took for granted that their state structures would be effective agents of the popular will. Russia's experience demonstrates that this assumption was overly optimistic. This book, based on a major collaborative research project with American and Russian scholars, shows that state capacity, strength, and coherence were highly problematic after communism, which had major consequences for particular functions of government and for the entire process of regime change. Eleven respected contributors examine governance in post-Soviet Russia in comparative context, investigating the roots, characteristics, and consequences of the crisis as a whole and its manifestations in the specific realms of tax collection, statistics, federalism, social policy, regulation of the banks, currency exchange, energy policy, and parliamentary oversight of the bureaucracy.

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  The Logic of Subchapter K: A Conceptual Guide to the Taxation of Partnerships

  Laura E. Cunningham and Noël B. Cunningham

  The material avoids neither the hard questions nor the conceptual difficulties, leaving students with a firm understanding of partnership taxation. Each chapter begins with a basic explanation of the relevant provisions, and the roles that they play in the overall structure of Subchapter K. Includes an increasingly detailed discussion of the specific rules, including multiple illustrative examples. Each chapter builds on the earlier chapters, leading the student through Subchapter K's seamless web. For J.D. or graduate-level law school courses on partnership taxation.

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  Law and New Governance in the EU and the US

  Gráinne de Búrca and Joanne Scott

  New approaches to governance have attracted significant scholarly attention in recent years. Commentators on both sides of the Atlantic have identified, charted and evaluated the rise and spread of forms of governance, forms which seem to differ from previous regulatory and legal paradigms. In Europe, the emergence of the Open Method of Coordination has provided a focal point for new governance studies. In the US, scholarship on issues such as collaborative problem-solving, democratic experimentalism, and problem-solving courts exemplify the interest in similar developments. This book covers diverse policy sectors and subjects, including the environment, education, anti-discrimination, food safety and many others. While some chapters concentrate on the operation of new governance mechanisms in a federal and multilevel context and others look at the relationship between public and private mechanisms and settings, what all the contributors share in common is the pursuit of effective mechanisms for addressing complex social problems, and the challenges they raise for our understanding of law and constitutionalism, and of legal and constitutional values.

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  Intellectual Property Stories

  Rochelle C. Dreyfuss and Jane C. Ginsburg

  This book brings famous cases to life by telling the true, never-heard-before stories behind landmark Intellectual Property cases. It is organized into six chapters, each drawing on cases in patents, copyrights, trademarks, or unfair competition, to illustrate the problems encountered in intellectual property law. The works, inventions, and marks at issue in these cases vary widely.

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  The Future of the Voting Rights Act

  David L. Epstein, Richard H. Pildes, Raphael O. de la Garza, and Sharyn O'Halloran

  The Voting Rights Act (VRA) stands among the great achievements of American democracy. Originally adopted in 1965, the Act extended full political citizenship to African-American voters in the United States nearly 100 years after the Fifteenth Amendment first gave them the vote. While Section 2 of the VRA is a nationwide, permanent ban on discriminatory election practices, Section 5, which is set to expire in 2007, targets only certain parts of the country, requiring that legislative bodies in these areas--mostly southern states with a history of discriminatory practices--get permission from the federal government before they can implement any change that affects voting. In The Future of the Voting Rights Act, David Epstein, Rodolfo de la Garza, Sharyn O'Halloran, and Richard Pildes bring together leading historians, political scientists, and legal scholars to assess the role Section 5 should play in America's future. The contributors offer varied perspectives on the debate. Samuel Issacharoff questions whether Section 5 remains necessary, citing the now substantial presence of blacks in legislative positions and the increasingly partisan enforcement of the law by the Department of Justice (DOJ). While David Epstein and Sharyn O'Halloran are concerned about political misuse of Section 5, they argue that it can only improve minority voting power—even with a partisan DOJ—and therefore continues to serve a valuable purpose. Other contributors argue that the achievements of Section 5 with respect to blacks should not obscure shortcomings in the protection of other groups. Laughlin McDonald argues that widespread and systematic voting discrimination against Native Americans requires that Section 5 protections be expanded to more counties in the west. Rodolfo de la Garza and Louis DeSipio point out that the growth of the Latino population in previously homogenous areas and the continued under-representation of Latinos in government call for an expanded Section 5 that accounts for changing demographics. As its expiration date approaches, it is vital to examine the role that Section 5 still plays in maintaining a healthy democracy. Combining historical perspective, legal scholarship, and the insight of the social sciences, The Future of the Voting Rights Act is a crucial read for anyone interested in one of this year's most important policy debates and in the future of civil rights in America.

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  How Progressives Rewrote the Constitution

  Richard A. Epstein

  How Progressives Rewrote the Constitution explores the fundamental shift in political and economic thought of the Progressive Era and how the Supreme Court was used to transform the Constitution into one that reflected the ideas of their own time, while undermining America’s founding principles. Epstein examines key decisions to demonstrate how Progressives attacked much of the legal precedent and eventually weakened the Court’s thinking concerning limited federal powers and the protection of individual rights. Progressives on the Court undermined basic economic principles of freedom and competition, paving the way for the modern redistributive and regulatory state. As Epstein writes, the Progressives “were determined that their vision of the managed economy should take precedence in all areas of life. Although they purported to have great sophistication on economic and social matters, their understanding was primitive. The Progressives and their modern defenders have to live with the stark truth that the noblest innovations of the Progressive Era were its greatest failures.” How Progressives Rewrote the Constitution shows that our modern “constitutional law,” fashioned largely by the New Deal Court in the late 1930s, has its roots in Progressivism, not in our country’s founding principles, and how so many of those ideas, however discredited by more recent economic thought, still shape the Court’s decisions.

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  Intellectual Property for the Technological Age

  Richard A. Epstein

  This paper replies to critics of intellectual property (IP). In the big picture, the present IP regime works quite well. Small reforms are preferable to drastic ones. Critics tend to overstate problems with IP, and overestimate the workability of alternatives. Critics of IP argue that it can hinder innovation by: giving holders monopoly power; freezing out new technologies; creating so many rights that negotiations are impossible; being too complex and costly. The threat of IP monopolies is overstated, and cures like compulsory licensing do more harm than good. Generally, the current IP regime works well. Alternatlves like open source software have limitations. Some reforms would be helpful. The patent and trademark office should be reformed. The United States should switching to first-to-file and require publication within 18 months. More should be done to stop the systematic piracy of intellectual property.

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  Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation

  Richard A. Epstein

  An analysis of how we regulate the pharmaceutical industry: are we protecting patients or blocking the development of useful new drugs? This book is the first to offer a comprehensive examination of the pharmaceutical industry by following the tortuous course of a new drug as it progresses from early development to final delivery. Richard A. Epstein looks closely at the regulatory framework that surrounds all aspects of making pharmaceutical products today, and he assesses which current legal and regulatory practices make sense and which have gone awry. While critics of pharmaceutical companies call for ever more stringent controls on virtually every aspect of drug development and approval, Epstein cautions that the effect of such an approach will be to stifle pharmaceutical innovation and slow the delivery of beneficial treatments to the patients who need them. The author considers an array of challenges that confront the industry--conflicts of interest among government, academe, and the drug companies; intellectual property rights that govern patents; FDA regulation; pricing disputes; marketing practices; and liability issues, including those brought to light in the recent VIOXX case. Epstein argues that to ensure the continuing creativity, efficiency, and success of the pharmaceutical industry, the best system will feature strong property rights and clearly enforceable contracts, with minimal regulatory and judicial interference.

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  Party Funding and Campaign Financing in International Perspective

  K. D. Ewing and Samuel Issacharoff

  This volume deals with questions of political party funding and campaign financing, issues which arouse controversy in many parts of the world. How are the central actors in the political arena supposed to gather the funds necessary to operate effectively on behalf of their chosen political ends? And, how may they spend money in furtherance of their political objectives? The aim of this volume, the first in a new series of Columbia University/London University collaborative projects, is to explore these issues in the specific context of a number of national settings. The studies presented here show that financing questions cannot be addressed independent of the constitutional conventions of the country, the nature of the political parties in the country, and the means of access to publication and the media in any given nation. The national studies in this volume reveal a rich diversity in the approach to regulation in Australia, Canada, the European Union, Japan, New Zealand, Quebec, the United Kingdom and the United States. The topicality of the issues considered is reflected in the fact that since the book was first mooted there have been major decisions of the US Supreme Court and the Supreme Court of Canada, as well as an investigation and report by the Electoral Commission in the United Kingdom, all of which have a direct bearing on the legal and policy issues discussed in this book.

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  Principles of Products Liability

  Mark A. Geistfeld

  The varied doctrines, disputes, competing conceptions of liability and responsibility, and leading cases in this area are all discussed in this book. Unlike other books in this subject area, this title fully develops the underlying concepts and then repeatedly shows how the important doctrines can be understood in terms of a few basic principles. The book also provides insights into the processes of the common law, while locating products liability within tort law more generally. The book will be of interest both for the specialized study of products liability and the more general study of tort law.

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  Regulation of Lawyers: Statutes and Regulations

  Stephen Gillers and Roy D. Simon

  Prior edition of Regulation of Lawyers: Statutes and Regulations.

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  Federal Income Taxation

  William A. Klein, Joseph Bankman, and Daniel N. Shaviro

  Generations of students -- and instructors -- have praised the book's successful approach: - problems interspersed among notes and questions - student-friendly text is also sufficiently challenging - a tradition of outstanding authorship - unique introduction providing insightful historical background and some economic analysis - theory and policy integrated throughout the text - excellent Teacher's Manual This extensive revision covers the many recent developments in taxation: - health insurance - the special rate for dividends - tax treatment of stock options - the deduction for medical expenses and its effects - new Health Savings Account provisions and their intended effects - new definitions of dependents, qualifying relatives, etc. - description of Section 529 qualified tuition programs - Revenue Ruling 2004-18 on deduction for costs to clean up land with hazardous waste - new Circular 230 rules for tax shelter opinions - Revised AMT discussion - new cases in the main text and notes, including King v. Commissioner, Banks v. Commissioner, Churchill Downs, Inc. v. Commissioner, INDOPCO, Inc. v. Commissioner, Colsec Industries v. United States, and United States v. Maginnis

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  Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute: Adopted and Promulgated by the American Law Institute at Philadelphia, Pennsylvania, May 17, 2005

  Andreas F. Lowenfeld and Linda J. Silberman

  This American Law Institute project began with the encouragement of the United States Department of State when the Hague Conference on Private International Law was considering an international convention on Jurisdiction and Judgments. Because recognition and enforcement of foreign judgments has traditionally been treated as a matter of state law, United States implementation of a Hague Convention on the subject would require federal legislation. The Institute invited Professors Andreas Lowenfeld and Linda Silberman of New York University School of Law to draft such legislation with supporting discussion and explanation. When progress toward a convention slowed at The Hague, the Reporters and most of their Advisers decided that the United States would benefit from a federal statute whether or not there was a convention to implement and that the ALI should draft and recommend such a statute. As the Reporters continued and expanded their work, the project was retitled Recognition and Enforcement of Foreign Judgment: Analysis and Proposed Federal Statute. The completed work, here published, contains valuable scholarship and comprehensive review of current law. It also contains discussion of the constitutional basis for federal legislation on the subject of foreign judgments. The most controversial issue in this effort has been whether to require reciprocity from countries whose judgments come before an American court for enforcement. The Reporters have done imaginative and sophisticated work to draft and explain the reciprocity requirement that this volume recommends. The membership of the Institute was divided on whether a federal statute concerning foreign judgments should contain a reciprocity requirement, but a substantial vote in two successive Annual Meeting favored reciprocity, subject to the burden of proof being on the party resisting recognition or enforcement on the basis of lack of reciprocity. The Institute believe that this project will have influence whether or not the recommended statute is enacted by helping the legal community to understand these challenging issues. The Reporters, leading scholars of both civil procedure and international law, have made a major contribution to the Institute and to legal scholarship. We thank them, the distinguished group of Advisers who assisted them, and the many ALI members who have participated in our lively discussions of this subject.

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  The Humanization of International Law

  Theodor Meron

  This work aims to consider the influence of human rights and humanitarian law on general international law: the humanization of international law. Although human rights and humanitarian norms are central to the book, it is not a book about human rights and humanitarian law. Rather, it deals with the radiation, or the reforming effect, that human rights and humanitarian law have had on other fields of public international law. Because of the peculiarities of human rights law, this influence cannot be taken for granted. It is sometimes said that the elaboration of human rights norms and institutions has produced no less than a revolution in the system of international law. Is this true and if so in which parts of international law? By examining most areas of public international law, the author attempts to demonstrate that the influence of human rights and humanitarian norms has not remained confined to one sector of international law, but that its influence has spread to many parts, albeit to varying degrees. The Humanization of International Law is a revised and expanded version of the General Course on Public International Law delivered by the author at the Hague Academy of International Law in 2003.

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  Civil Procedure: Theory and Practice

  Linda J. Silberman, Allan R. Stein, and Tobias Barrington Wolff

  The first-year course in civil procedure presents a great challenge for both teacher and student. Unlike most of the first-year courses—contracts, torts, and criminal law—with which students have some familiarity, students approach civil procedure with little context. Concepts of jurisdiction and summary judgment seem completely foreign to many students. In addition, civil procedure is the classic “seamless web”; in order to understand any piece, you must understand the whole. Thus, it is imperative for the teacher to find a way to give students a feel for the interrelationship of various pieces of a litigation as each individual unit is examined. The teacher must also battle potential misconceptions about a course in “procedure.” Students often think that procedure is just about learning a series of mechanical rules against which the important policy disputes of substantive law are played out. Students are surprised to discover that procedure issues also turn on deep and interesting conceptual questions and that arguments about procedure are often the critical turning point in the outcome of litigation. Procedure is, in fact, one of the best vehicles for developing the full range of reasoning skills and perspectives critical to the discipline of law. In certain areas, such as personal jurisdictions and the Erie doctrine, the development of the case law is a paradigmatic exercise in legal process. Students in the course are also introduced to a broad range of legal sources. Aside from reading cases, students grapple with rules, statutes, and constitutional provisions, and must master the interpretive techniques unique to each. Consideration of lawyering strategy is a constant undercurrent. Understanding why the parties have sued in a particular court or framed the complaint in a particular way requires a thorough integration of theory and practice, doctrine and policy. We appreciate the enormous challenge of putting together a book that can meet all of these objectives. We have produced a book with significant links to the rich tradition of casebooks that precede it, but with a modern pedagogy and distinctive focus. In particular, we have tried to provide a direct and clear treatment of fundamental principles. For each topic, we provide introductory material that the students and teacher can use as a starting point, and from there we explore more difficult issues through the cases and questions. We rarely ask a question without providing at least the beginning of an answer. We eschew the traditional approach of providing a principal case for every important issue. Instead, we make extensive use of notes and questions to provide wide coverage and depth. Much of this material is self-explanatory and does not always require class time to review. Each principal case has been selected because it provides a rich teaching opportunity. Cases are carefully framed to give students a sense of where each case fits in and why it has been assigned. We make explicit the relationship of a principal case to the other cases that precede and follow it. A substantial amount of the material is presented outside of the case method altogether. Chapters 1 and 5 are designed around actual litigation documents. Global and policy perspectives are exposed throughout the book. Unlike some approaches that merely expose the students to these sources by way of supplement or example, these materials are integrated into the structure of the book. We begin in Chapter 1 with an overview of the entire litigation process. This approach enables the student at the outset to see how various pieces of the puzzle fit together and to gain an introduction to relevant terms and concepts. Not only do we provide a detailed summary of the stages of litigation, but we also take the reader through an actual case, illustrated with actual court documents. The case resulted in the landmark Supreme Court ruling on libel, New York Times v. Sullivan. It is, we think, a particularly engaging and self-explanatory introductions to how procedure works on the ground. We also provide an exercise in “Reading a Civil Procedure Case,” in which we make explicit many of the traditionally unstated assumptions about why and how we read judicial decision. From there we move in the first several chapters to the important federalism doctrines that form the core of most procedure courses: personal jurisdiction, subject matter jurisdiction, and the Erie doctrine. These beginning chapters not only serve as an important illustration of case law methodology but also allow us to emphasize the strategic choices that lawyers face every day in a federal system. That perspective is also characteristic of the later chapters on preclusion, remedies, and class actions. We consistently address the question of why the law matters to the parties and their lawyers. In addition, we pursue broader questions of policy and expose the students to contrasting state practices and international perspectives. Perhaps the most innovative chapter of the book is the one on pleading, discovery, and adjudication, in which an actual case forms the centerpiece of the chapter. Each of us, having taught various procedure courses for many years, is familiar with the attempts of many teachers to supplement the casebook with simulations and litigation documents. Our approach integrates these materials into the structure of the chapter. We have combined all of the elements of an adjudication into a single chapter and use a single product lability case as a teaching tool throughout. We provide a succinct but comprehensive presentation of the law and explore how those legal concepts apply to the case at hand. Students have the opportunity to see the actual court documents while they attempt to apply the rules and doctrine. They gain a good sense of how the legal concepts work, and they develop the critical skills of fact management and strategic judgment. Notwithstanding the depth and sophistication of the material, our adopters have found that the book works well in a wide range of contexts. Many of our adpoters have used the book in four- or five-hour, one-semester courses, while others have had the luxury of a full year, six-hour course. The books seems to work equally well in both settings. We are delighted to present the second edition of CIVIL PROCEDURE: THEORY AND PRACTICE and welcome our new co-author Tobias Wolff, Professor of Law at the University of California at Davis. This edition incorporates important developments in the law of procedure, includes a new chapter on remedies, and expands our consideration of international and comparative perspectives. The core structure and pedagogical assumptions of the first edition are unchanged. The most significant change in this edition is our new chapter on the law of remedies and provisional relief, Chapter 6. This chapter gives a rich but concise account of the standards for grating equitable relief. It then examines the different forms of equitable relief that a litigant can seeks during a lawsuit—temporary restraining order, preliminary injunction, permanent injunction—and explores the impact that each can have on the litigation process. Finally, it treats the subject of provisional relief—attachment, garnishment—synthesizing the Supreme Court’s pronouncements in this field to provide a solid understanding of the practical and constitutional concerns associated with ex parte or pre-litigation court orders. For teachers who wish to examine these materials in more depth, the chapter also includes some discrete and easily separable discussions of the major schools of thought on the proper role of equity courts, drawing upon materials from las and economics and from the law of public institutions and the structural injunction. The timing of this edition has been fortuitous. We have been able to incorporate a number of very recent, significant developments in the law of procedure. In some cases the material in the casebook has been significantly restructured around those developments: The personal jurisdiction chapter now includes expanded coverage of the jurisdictional implications of defamation and electronic communications, as well as more in-depth consideration of global and comparative perspectives. The subject matter jurisdiction chapter has been significantly reworked to take account of the Supreme Court’s decisions in Grable and Allapattah, as well as new federal statutes affecting jurisdiction in class actions and multistate controversies. Chapter 5, Anatomy of a Litigation, now includes significantly expanded coverage of the right to jury trial, and judgments as a matter of law, including new principal cases on these topics. We have also provided a new discussion of discovery in the international context. The preclusion chapter incorporates several major developments from the last five years. It includes a new section on the doctrine of judicial estoppel, which the Supreme Court formally recognized for the first time several years ago. For those teachers who cover interjurisdictional preclusion issues, the chapter also provides a thorough discussion of the Semtek case and the preclusive effect to be afforded to the judgments of federal courts sitting in diversity. We have made major additions to the sections of Chapter 8 dealing with class actions and complex litigation. We provide a thorough discussion of the Class Action Fairness Act of 2005 and explore some of its likely implications for the future of class action litigation. We have also replaced the Castano case with the more recent opinion of the Seventh Circuit in the Bridgestone/Firestone litigation, a change that provides the opportunity to explore more recent developments in nationwide class action practice. Chapter 8 also offers a comprehensive treatment of the Multiparty Multiform Trial Jurisdiction Act.