Faculty Books & Edited Works

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Civil Litigation in New York

Oscar G. Chase and Robert A. Barker

We are very pleased to present the fifth edition of Civil Litigation in New York. We are gratified by the warm reception the casebook continues to receive from student and professors throughout New York and beyond. Our goal continues to be the provision of a book that is readable, as reasonably thorough as space permits, and as thought-provoking as the many interesting issues raised by modern litigation allow. We have maintained the basic structure of the book that has well-served students and teachers in the more than twenty years since the appearance of the first edition. You will find that important new cases have been added and statutory changes noted, but we have avoided change for change’s sake and have thus retained the cases that make up the “canon” of our subject. . . . Civil litigation in New York is complex and demanding. It calls on such advocacy skills as oral argument, brief writing and cross-examination, but even more does it demand familiarity with the “law” of litigation. The purpose of this book is to help you learn that law in the context in which an advocate must apply it. We hope that you will not only become familiar with the rules of New York practice but that you will develop a sense of how they can be creatively applied. To that end we have included in each chapter litigation problems which are designed to help you put the law into a practical perspective. The problems are based on realistic situations (sometimes on actual cases) and therefore raise the sorts of difficult issues which can arise in the course of any action. Usually, you will find that we have presented the problem prior to the material which bears on it. This will hopefully make the material less abstract and more involving. Many of the problems do not have a single answer which is correct in an absolute sense. As with most legal issues there are various possible solutions, each with its own supporting arguments. Please approach them in that spirit. In keeping with its purposes, the book is organized roughly along the path litigation normally takes, starting with the rules governing the choice of forum. Since there is no route which all lawsuits must follow, and since there are some rules of litigation (e.g., those governing motion practice) which are relevant to several stages of a lawsuit, you should not take the linear organization we have adopted as exemplifying all lawsuits or as an approach you would always follow in practice. Use it, rather, to gain and keep a general sense of litigation as a process with a beginning, middle and clearly defined goal. The variety of paths litigation can take brings us to another point about the study of it. The flexibility of modern civil procedure, including that of New York, allows and therefore requires the lawyer to make frequent tactical choices. Should one make a particular motion? Obtain a provisional remedy? Seek discovery? If so, what kind? How should the pleading be drafted? It is our view that an effective advocate knows what the ethical choices are in every situation and dose his or her best to pick the alternative which will maximize the client’s chances of success. Thus, as you read the cases and problems which follow, we urge you to think about and evaluate the choices that the litigants made. The management of litigation system in pursuit of success is not the only challenge to the student or attorney. Equally fulfilling, if not more so, is participation in the ongoing effort to reform and improve the system. This book goes to press during a period of widespread criticism of civil litigation as a method of resolve disputes. How the system can and should be changed in response to its critics is therefore a particularly timely issue now; there is no doubt that the search for improvement will continue during the professional lifetime of today’s student. Thus, these materials frequently encourage you to step back from the process and ask “How can we make this better?”
Civil Litigation in Comparative Context

Oscar G. Chase and Helen Hershkoff

This book reflects a fortuitous collaboration among its authors. As a group, we teach and practice law on three different continents and have explored civil procedure from a comparative point of view in a number of venues over the past decades. When we realized—through our own teaching experience—that there was no accessible set of materials to support a course in comparative procedure, we decided to fill that gap through our collective effort. We have learned an enormous amount from each other during the ensuing period of discussion and correspondence, and we hope that the fruits of this collaboration resonate throughout the book. We designed the book in the hope of presenting materials that expose students to the many fascinating varieties of process one encounters in the world’s procedural systems. Professors who share our sense of the importance of the transnational study of law may wish to assign it as a supplement to a traditional casebook in an introductory procedure course. We also encourage proceduralists and comparatists to offer a comparative procedure course in the university in which they teach, wherever it may be located. We hope, too, that this book will serve as a brief but adequate guide to scholars, lawyers, and judges who are curious about “how others do it,” i.e., how nations other than their own meet the challenge of disputing in the modern world.
Civil Litigation in Comparative Context

Oscar G. Chase, Helen Hershkoff, Linda J. Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman

Civil Litigation in Comparative Context opens with a treatment of the principal differences among the major civil litigation systems. Subsequent chapters cover: Organization of the courts and the legal profession Roles of the attorney and judge Processes of learning and proving facts Short cuts to judgment and provisional remedies Appellate process Enforcement of judgments Prospects for convergence and harmonization The book can be used as an adjunct to an introductory civil procedure course, the text for an upper-class seminar in comparative procedure, and a supplement to the existing general comparative law casebooks.
Federal Standards of Review: Review of District Court Decisions and Agency Actions

Harry T. Edwards and Linda A. Elliott

Judge Harry T. Edwards and Linda A. Elliott have produced a thoughtful, thorough, and informative text that masterfully explains the standards controlling how the U.S. Courts of Appeals review district court decisions and agency actions. Their book guides readers through a variety of issues critical to appellate decisionmaking, including the ways in which the key statutes and rules governing appellate review of district court decisions are interpreted and applied; the effect of the Administrative Procedure Act on review of agency decisions; the deference due an agency's construction of its authorizing statute pursuant to Chevron and its progeny; and the role and limits of the fact/law paradigm in appellate decisionmaking. Offering a sophisticated but easy to understand exposition of the complex review doctrines defining federal appellate decisionmaking, Federal Courts Standards of Review is an invaluable resource for trial and appellate practitioners, law students, and judicial law clerks.
Antitrust Consent Decrees in Theory and Practice: Why Less Is More

Richard A. Epstein

For over one hundred years, the antitrust consent decree has been a major weapon in the federal enforcement of antitrust laws. In Antitrust Consent Decrees in Theory and Practice, Richard A. Epstein undertakes the first systematic study of their use and effectiveness from both a historical and analytical perspective. Epstein observes how differences in antitrust philosophy can shape the kinds of comprehensive settlements that the government will seek and the courts will grant. Epstein takes issue with aggressive antitrust enforcement strategies that seek to use government power to fundamentally alter industry structures or the business practices of regulated firms, in some instances leading to their breakup. To explain the perils of that approach, Epstein carefully examines the history of consent decree litigation, culminating in detailed studies of the AT&T breakup and the government antitrust actions against Microsoft. Applying modern theories of antitrust analysis, Epstein's central thesis is that bold antitrust remedies that are not tightly tied to a defensible theory of wrongful conduct often prove counterproductive. Such measures typically force firms to adopt business practices and structural reorganizations that substantially impede their ability to compete effectively in the marketplace. The disparate fates of AT&T and Microsoft are the result of a major and fruitful shift in thinking about the use and limits on the antitrust laws in a wide variety of industrial contexts. Antitrust Consent Decrees in Theory and Practice will be of interest to any reader who is concerned with the larger implications of the government regulation of law and business. Epstein brings nearly forty years of personal knowledge and experience to this matter. Written in a clear and nontechnical style, this book should prove an invaluable resource to any student of regulation and economic policy, as well as lawyers and policymakers concerned with antitrust litigation.
Economics of Property Law

Richard A. Epstein

This important volume gives a comprehensive overview of the economic foundations of private property law. Beginning with economic and philosophical accounts of the origins of property, the authoritative selection of articles traces the evolution of both private and common property, establishing how they coexist within a mature property rights system. Particular attention is directed towards the regulation of specific types of commons such as pastures, streets and fisheries. The study also examines the rules that govern the acquisition, protection and transfer of private property as part of a coherent system of property rights.
Federal Preemption: States' Powers, National Interests

Richard A. Epstein and Michael S. Greve

When does federal law trump state law? The arcane topic of federal preemption has become the stuff of public debate and major news stories. The partisan lines are clearly drawn. On one side, consumer advocates, plaintiffs' attorneys, and state officials argue that broad federal preemption claims interfere with the states' historic police power to protect their citizens against corporate misconduct. On the other side, corporations and federal agencies maintain that preemption is a vital safeguard against unwarranted and inconsistent state interferences with the national economy and against aggressive trial lawyers and attorneys general. Fierce struggles along these lines dominate the political debate, judicial decisions, and legal commentary in a wide range of regulatory arenas, from financial regulation to automobile safety; from clean air laws to the regulation of telecommunications, energy, and other network industries; from securities law to consumer products standards; from pharmaceutical drugs to pesticides to outboard motors. In all these areas, billions of dollars hang on regulatory nuances and arcane points of legal interpretation. The preemption debate is also being waged in the shadow of broader, sometimes constitutional arguments concerning the role and utility of federalism and "states' rights" in a modern, highly mobile, integrated economy. Legal scholars are sharply divided over both the substance of those arguments and the extent to which they should dominate economic considerations or statutory language. What the preemption debate needs is an examination that reflects the delicate interplay between our constitutional structure and the details of specific regulations. In Federal Preemption: States' Powers, National Interests, Richard A. Epstein and Michael S. Greve, two leading scholars in the field of preemption, have assembled an exceptional group of prominent legal scholars and practicing attorneys for a probing analysis and spirited discussion of these difficult issues.
Global Issues in Labor Law

Samuel Estreicher

This book emphasizes primary materials such as statutes, proposed guest worker legislation, International Labour Organization conventions, Organization for Economic Cooperation and Development guidelines, company codes of conduct, World Trade Organization rulings, AFL-CIO complaints, European Union directives, and Alien Tort Claims Act decisions. The materials have been carefully edited to facilitate classroom discussion and further student research.
Employment Law Stories

Samuel Estreicher and Gillian Lester

Employment law is emerging as an important practice area. This title provides behind-the-scenes descriptions of the landmark cases—the litigants, the lawyers, the strategy—that helped shape this growing field. This account of emerging law is designed to help the student understand that, well before appellate judges are involved, the basic narrative and the doctrinal and policy potential of the case have been set by the decisions of litigants and their representatives. Several chapters are also devoted to the story behind some of the principal statutes in the area.
Antitrust Stories

Eleanor M. Fox and Daniel A. Crane

Drawing on history, economics, politics, and law, Fox and Crane’s Antitrust Stories provide a glimpse behind the texts of well-known legal opinions into the larger-than-life personalities and struggles of their antagonists and protagonists. Cases have been selected to provide a historical sampling of different eras of antitrust enforcement. They range from Standard Oil at the founding of U.S. antitrust to Microsoft in the new economy. This title is an invaluable supplement to any antitrust casebook, and the inclusion of cases with international aspects, including GE/Honeywell, Empagran, and Alcoa, makes it useful for courses on comparative or international competition policy. It is also useful as an assigned text for an undergraduate course in economic history or business regulation.
Regulation of Lawyers: Statutes and Regulations

Stephen Gillers and Roy D. Simon

Prior edition of Regulation of Lawyers: Statutes and Regulations.
Payment Systems and Credit Instruments

Clayton P. Gillette, Robert E. Scott, and Alan Schwartz

Gillette, Schwartz and Scott’s casebook provides detailed information on payment systems and credit instruments. The casebook provides the tools for fast, easy, on-point research. Part of the University Casebook Series®, it includes selected cases designed to illustrate the development of a body of law on a particular subject. Text and explanatory materials designed for law study accompany the cases.
Concealment and Revelation: Esotericism in Jewish Thought and Its Philosophical Implications

Moshe Halbertal and Jackie Feldman

During the twelfth and thirteenth centuries, great new trends of Jewish thought emerged whose widely varied representatives — Kabbalists, philosophers, and astrologers — each claimed that their particular understanding revealed the actual secret of the Torah. They presented their own readings in a coded fashion that has come to be regarded by many as the very essence of esotericism. Concealment and Revelation takes us on a fascinating journey to the depths of the esoteric imagination. Carefully tracing the rise of esotericism and its function in medieval Jewish thought, Moshe Halbertal’s richly detailed historical and cultural analysis gradually builds conceptual-philosophical force to culminate in a masterful phenomenological taxonomy of esotericism and its paradoxes. Among the questions addressed: What are the internal justifications that esoteric traditions provide for their own existence, especially in the Jewish world, in which the spread of knowledge was of great importance? How do esoteric teachings coexist with the revealed tradition, and what is the relationship between the various esoteric teachings that compete with that revealed tradition? Halbertal concludes that, through the medium of the concealed, Jewish thinkers integrated into the heart of the Jewish tradition diverse cultural influences such as Aristotelianism, Neoplatonism, and Hermeticisims. And the creation of an added concealed layer, unregulated and open-ended, became the source of the most daring and radical interpretations of the tradition.
Judaism and the Challenges of Modern Life

Moshe Halbertal and Donniel Hartman

Much more than a particular period in world history, modernity has fundamentally transformed how we think and live, and especially how we understand and relate to religious traditions. As the 'ghetto walls' have fallen, both empirically and metaphorically, Judaism is compelled to compete in an open marketplace of ideas. Jews can no longer count on an assumedly necessary Jewish identity or commitment, nor on the rallying force of anti-Semitism to ensure an individual and collective sense of belonging. Rather Jewish moral, spiritual and historical values and ideas must be read with new eyes and challenged to address modernity's proliferating array of questions and realities. The pertinent questions modern Jewry faces are how to embrace modernity as Jews and what such an embrace means for the meaning and future of Jewish life. This collection of essays, authored by scholars of the Shalom Hartman Institute, addresses three critical challenges posed to Judaism by modernity: the challenge of ideas, the challenge of diversity, and the challenge of statehood, and provides insights and ideas for the future direction of Judaism. Providing readers with new insights into Judaism and the Jewish people in contemporary times, the collection explores a wide range of issues that includes: the significance of Israel for the future of Judaism; the Jewish people as a people; the relationship between monotheism and violence; revelation and ethics; Judaism and the feminist challenge; and Judaism and homosexuality.
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.
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.
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.
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.
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.
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.
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'.
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.
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.
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.
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.