Columbia School of Law

The US 4th Circuit Court of Appeals has no jurisdiction to impose Reciprocal Discipline when the original entity imposing discipline lacked subject matter jurisdiction to impose discipline on an attorney practicing law in the Commonwealth of Virginia, USA.

Two timeless women embody the ideals of our nation. In New York Harbor, the Statue of Liberty proclaims: "Give me your tired, your poor, / Your huddled masses yearning to breathe free ... ."I In Washington, D.C., the statue Contemplation of Justice sits solemnly before the main entrance to the Supreme Court of the United States. 2 Above her head, on the building's architrave, appear the words "Equal Justice Under Law." These two promises, of opportunity and equality, have marked our nation's vision since its founding. The pledge of "equaljustice under law" is a profound one, positing a judicial system free of corruption and favoritism as well as one that disdains distinctions of class and caste. The true achievement of our country has been not merely the original expression of this idea, but our willingness to expand our commitment, gradually, to include propertyless white men, former male slaves, other men of color, women of all races, people with disabilities, gay and lesbian citizens, and others within the circle originally reserved for the propertied white men who founded our nation. We began with a transcendent principle, but we have also had the humility to recognize our failings and to revise our behavior to draw closer to our ideal. Ruth Bader Ginsburg's work embodies that quest, as well as the delicate balance between honoring the timelessness of our Constitution and recognizing the depth of its enduring principles in new centuries and under new circumstances. "[T]he equal dignity of individuals is part of the constitutional legacy," Justice Ginsburg wrote recently, "shaped and

? 1979 Robert & Veda Charrow * Assistant Professor of Law, Howard University. BS 1966, Harvey Mudd College; JD 1969, Stanford University. ** Research Scientist, American Institutes for Research. BA 1967, McGill University; MA, Ph.D. 1974, Stanford University. The research ...

Research in the field of behavioral economics indicates that humans stumble in their decisionmaking in predictable ways that can often be corrected by a gentle nudge from the appropriate regulatory authority. Two new books--Dan Ariely's Predictably Irrational and Richard Thaler and Cass Sunstein's Nudge--recount the findings of behavioral research on predictable patterns in human decisionmaking and lay the foundation for regulation through choice architecture that recognizes these human stumbles. In this Review Essay, we provide a critical account of remaining gaps in behavioral economics research and suggest that some types of behavioral insights may be better translated into law and policy reforms than others. We further argue that Nudge's concept of "libertarian paternalism" both understates and exaggerates the jurisprudential and policy implications of regulatory innovation. While key insights from the behavioral field may lead to effective regulation systems with minimal intervention, these systems entail costs, have distributional effects, solve macro coordination problems, and are inevitably value driven. Moreover, policy nudges serve merely as a first stage of sequenced regulation where, inevitably, more coercive measures are required in later stages. The idea of choice architecture is then related to the growing body of regulatory studies collectively termed "new governance." We conclude with a call for a more nuanced account of the range of mechanisms as well as the limits, costs, and consequences of applying lessons from the field of behavioral economics to law.

This story of the evolution of legal evaluations from the seventeenth century to the close of the twentieth depicts English influences on American law student evaluations, which have waned in the twentieth century with the advent of course-end examinations. Seventeenth- and eighteenth-century English examinations given to conclude a legal degree were relatively ceremonial exercises in which performance was often based on the demonstration of rote memory. As examination processes evolved, American law schools adopted essay evaluations from their English counterparts. Examinees in the nineteenth century were given a narrative, requiring the recognition of particularly appropriate legal doctrines, enunciation of the component requirements of the doctrines, and the prioritized application of those components to the facts. One function of this type of examination procedure was to emphasize applications of the law to particular situations rather than to reward memorization. In response to new educational theory in the twentieth century, greater concern about the validity of measurement in law school examinations led to the development of short-answer, true-false, and multiple choice questions. Moot courts, once a popular source of legal instruction in England and America, changed considerably in the twentieth century with the development of interschool competitions and with graded moot court programs. Grades, allowing for the ranking of students, became an essential function of the modem law school examination. In the 1980’s and 1990’s, law schools have markedly reduced the rigor of their grades and diminished the level of academic attrition. The current method of using course-end exams as the sole method of grading has profound disadvantages and has been met with many calls for reform.

Lives Probably the most vexing problem raised by the cost-benefit analysis of environmental regulation is how to deal with the fact that the loss of human life generally does not occur contemporaneously with the exposure to certain contaminants. In some cases, the environmental exposure produces a harm with a latency period whereas in others it produces harms to future generations. The article underscores the extent to which the cases of latent harms and harms to future generations are analytically distinct, even though they have generally been treated as two manifestations of the same problem. In the case of latent harms, one needs to make intrapersonal, intertemporal comparisons of utility, whereas in the case of harms to future generations what is needed is a metric against which to compare the utilities of individuals living in different generations. Thus, the appropriateness of discounting would be resolved differently in the two contexts.

In this Article, Professors Dorf and Sabel identif a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that affect them.

uncertainty is distinguished from risk. Risk exists when alternative future states of the world occur with quantifiable probability: The future can be expressed as a probability distribution. Uncertainty exists when alternative future states of the world do not occur with quantifiable probability. The distinction between risk and uncertainty is a useful way to illustrate the manner in which accelerating technology and global competition have created unique circumstances that resist probabilistic classification. 16

This paper primarily attempts to answer the question of whether the Sharī'a and the modern state are, or can hope to be, compatible in practice or theory. The study reviews three recent works by prominent scholars of Islamic law that address the issue: Professor Wael Hallaq's The Impossible State, Noah Feldman's The Fall and Rise of the Islamic State and Abdullahi An-Na'im's Islam and the Secular State. The paper seeks to characterize and analyze their multiplicity of approaches, theoretical frameworks and conclusions. It also addresses the diverse assumptions and conceptual paradigms from within which they emerge. It examines the theories and findings of the authors in relation to central analytical categories that underlie the issue of the compatibility, or lack thereof, of the Sharī'a with the state. These are: the state itself, and liberalism and colonialism as its byproducts. Finally, it delves into the crucial matter of subject formation under the premodern Islamic and modern paradigms, issue which directly bears upon, and actually determines, the central query of the paper. Because of its significance to the crux of this study, the paper begins by endeavoring to describe what the Sharī'a was in premodernity. It also addresses the problems inherent in speaking about communities, epistemologies, structures, and ways of understanding life that no longer exist and are utterly foreign to our modern language and conceptions.

Supreme Court doctrine protects two seemingly distinct kinds of interests under the heading of privacy rights: one "substantive," the other "procedural." The Fourth Amendment guarantee against "unreasonable searches and seizures" has been generally interpreted to protect procedural privacy. Searches are typically defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation. In the typical case, this reasonable expectation of privacy may be breached only where the government has acquired a quantitatively substantial objective basis for believing that the search would uncover evidence of a crime. Substantive privacy rights have not normally been considered in this inquiry.

some immigrants, all great-grandparents. SUMMARY: ... Critical Race Theory dreams in black and white. ... The change, signified by the instant Symposium, is bound up in the emergence of LatCrit theory. ... Specifically, it addresses race consciousness and identity, racial power, racialized doctrine and narrative, and modes of race/gender/ethnic intersectionality. ... To Critical Race theorists, liberal faith in a court-driven, technocratic eradication of racial bias is misplaced. ... Honing in on that ambiguity, the last step of the analysis opens up race and 85 Calif. L. Rev. 1647 racial identity to a broader, multifaceted investigation integrating gender, ethnicity, and sexual orientation. ... Searching for common ground in the legal academy, Jerome McCristal Culp finds traditional legal discourse and scholarship unreceptive to the inclusion of race or racial autobiography. ... Critical Race theorists seek out racial identity and the socially constructed meaning of race in empirical and anecdotal evidence of exclusion. ... Heralded by liberal reformers, the neo-republican vision proffers to cure the political disenfranchisement and underrepresentation of people of color through cross-cultural coalitionbuilding. ... Although those alternative models are not yet fully formed, their outlines may be traced through the ongoing scholarly efforts to recast the meaning of race consciousness and power, racial identity and exclusion, and racialized voice and narrative. ...

Economists have invented a game: the ultimatum game. The people who run the game give some money, on a provisional basis, to two players. The first player is instructed to offer some part of the money to the second player. If the second player accepts that amount, he can keep what is offered, and the first player gets to keep the rest. But if the second player rejects the offer, neither player gets anything. Both players are informed that these are the rules. No bargaining is allowed. Using standard assumptions about rationality, self-interest, and choice, economists predict that the first player should offer a penny and the second player should accept.

Currently, there are a few law schools in Bangladesh which has ADR as a course module. The subject is mostly taught in the first semester of a 4 year Honors programme. By the time a student graduates, he would forget what he studied on his first days as a law student. What needs to be introduced is a standalone course which is longer in duration.

Lon Fuller's "Consideration and Form" originated a scheme for the analysis of contract questions based on multiple formal and substantive con-siderations, with "the principle of private autonomy"first among equals. This Article places Fuller's scheme in the context of the ...

The research reported in this Essay examines process discounts—differences in sentences imposed for the same offense, depending upon whether the conviction was by jury trial, bench trial, or guilty plea—in five states that use judicial sentencing guidelines. Few guidelines systems expressly recognize “plea agreement” as an acceptable basis for departure, and none authorizes judges to vary sentences based upon whether or not the defendant waived his right to a jury trial and opted for a bench trial. Nevertheless, we predicted that because of the cost savings resulting from waivers, judges and prosecutors in any sentencing system would ensure that guilty plea convictions would generate the lowest sentences, with bench trial sentences averaging higher than plea-based sentences for the same offense, and sentences following jury trials averaging the highest of all, even after controlling for other factors associated with sentence severity. We found that a significant plea discount is evi...

In this Article, Professors Dorf and Sabel identif a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling,

Under Apprendi v. New Jersey, any fact that increases an offender’s maximum punishment must be found by a jury beyond a reasonable doubt. The Apprendi literature has focused on the allocation of power between judge and jury, ignoring entirely the role of the parole board in indeterminate sentences—that is, sentences which terminate in discretionary parole release. In an indeterminate sentence, a judge makes a pronouncement about the length of the prescriptive sentence to be imposed, but the parole board decides the actual sentence that is, in fact, imposed.In this Article, I explore the Apprendi ramifications of indeterminate sentencing. In states where a prisoner is presumptively entitled to parole release, the denial of parole increases the maximum punishment without a jury finding the relevant facts beyond a reasonable doubt. In California specifically, the parole board can transform parole eligible offenses into parole ineligible offenses based on its own findings of fact about ...

In a series of lectures in 1970,' Professor Grant Gilmore pronounced the death of contract. The announcement heralded a renaissance in contract scholarship. The renaissance has reached maturity: in the past two years no less than four major books have been published on contract, 2 and these books do not exhaust the multitudinous positions on contract that have been espoused in the law reviews, economic journals, and other books in the decade since Gilmore wrote the obituary. 3 Intellectual curiosity might explain this spate of scholarly energy. 4 At its

In recent academic writing on the general problem of constitutional protection of property under the takings clause' and due process clauses, 2 a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. 3 But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests. Charles Reich's famous paper, "The New Property, ' '4 is the wellspring for this phase of scholarship on constitutional property. Subsequent writings by Frank Michelman, 5 Joseph Sax, 6 and others 7 have contributed to the trend with respect both to procedural protection under the due process clause and to substantive protection through compensation. Most observers who have commented upon the development of this new mode of analysis have seen a radical discontinuity between its teleological

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pretrial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater quantities of resources. Yet these procedural delays are likely to have salutary effects on the litigation system as well. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that it takes her case to reach trial the aggrieved plaintiff is likely to adapt hedonically to her injury-even if that injury is permanent-and within two years will report levels of happiness very close to her pre-injury state. Consequently, the amount of money that the plaintiff believes will fairly compensate her for her injury-will -make her whole,‖ in the typical parlance of tort damages-will decrease appreciably. The sum that the plaintiff is willing to accept in settlement will decline accordingly, and the chances of settlement increase-perhaps dramatically. The high costs of prolonged civil litigation are thus likely to be offset substantially by the resources saved as adaptive litigants succeed in settling before

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Debates over "entitlements" have lacked conceptual clarity because the term has at least six analytically distinct meanings. The psychological "entitlements" that many attack are distinct from the legalistic "entitlements" that others champion. Most importantly, however, entitlements are economic concepts. A benefit provided to all claimants meeting stated eligibility requirements can be termed a "responsive entitlement', its antithesis is a program that arbitrarily caps participation. Similarly, a program whose benefits are defined by the amount required to accomplish some specific purpose is a 'functional entitlement"; it may be juxtaposed with one providing only an arbitrary sum. The market through which public sentiments and claimants' needs govern the generosity of benefits and the number of recipients served can be described in terms offamiliar supply and demand functions. Responsive entitlements allow that market to clear. Artificially capping participation, by contrast, creates the same inefficiencies economists decry in pricecontrolled markets. Benefits lacking functional entitlements also may distort private markets. Moreover, entitlements are crucial to maintaining political transparency. Without them, programs' scope, benefits, and eligibility requirements must be described in arbitrary terms few voters can comprehend. Voters tend to assume programs are entitlements, overestimating the support available to those programs' target populations. Confusion among types of entitlements, and the complexity inherent in nonentitlements, further impedes meaningful debate. Recognizing this, some liberals have sought to avoid debate about costs by creating nonentitlements that they can slowly expand. Conversely, some opponents of means-tested programs have shifted from attacking programs' funding to dismantling responsive and functional entitlements.

This Article explores the distinction between in personam contract rights and in rem property rights. It presents a functional explanation for why the legal system utilizes these two modalities of rights, grounded in the pattern of information costs associated with each modality. To test this theory, the Article examines four legal institutions that fall along the property/contract interface-bailments, landlord-tenant law, security interests, and trusts-in order to determine how the legal doctrine varies as the underlying situation shifts from in personam, to in rem, to certain relations intermediate between these poles. With respect to each institution, we generally find that in personam relations are governed by flexible default rules; in rem relations are governed by bright-line rules that impose immutable and standardized obligations; intermediate relations, as befits their intermediate level of information costs, feature a type and degree of standardization beyond pure contract but short of pure property.

for their helpful comments on earlier versions of this Essay and above all to his dear friend and mentor, the late Marvin Becker, without whose advice and encouragement this Essay would never have been completed. The research of Melanie Coleman, Meri Triades, and Sue McCarty contributed greatly to this Essay. This Essay benefited enormously from the expert editorial guidance of Cynthia Mendez and her colleagues at the Columbia Law Review. The author is grateful to the Frances Lewis Law Center and to the University of Maryland Law School for their generous support of this research.

Professor Rubin's article is an admirable piece of work on many levels, from its attention to jurisprudence to its concern with the practical changes in the Congress and its function, and their implications. In commenting on it, I mean to restrict myself to the latter subjects. These are the matters that have the closest tangency to my own work and produce for me the strongest response. Professor Rubin has given us a compelling statement of the problems posed for contemporary constitutional and legislative theory by one transformation in statutory practice accompanying the rise of the administrative state, the change from direct ("transitive") legislative resolution of policy problems to indirect ("intransitive") resolution through the empowerment of agents who are to determine policy problems under instruction. These changes, he argues, undercut such conventional doctrinal norms as "delegation" and "void-for-vagueness" as means for assessing legislative action.