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The Domain of Reflexive Law 反身法的领域
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2003-01-01 DOI: 10.2307/1123697
Michael C. Dorf
{"title":"The Domain of Reflexive Law","authors":"Michael C. Dorf","doi":"10.2307/1123697","DOIUrl":"https://doi.org/10.2307/1123697","url":null,"abstract":"In Regulating Intimacy: A New Legal Paradigm, Jean Cohen synthesizes liberal and egalitarian justifications for a right to sexual privacy. Cohen proposes that regulation of sexual privacy, where permissible, be accomplished through \"reflexive law.\" This Review Essay expresses broad sympathy for Cohen's project, while suggesting an expansion. In Cohen's reflexive paradigm, the sovereign in its lawmaking capacity sets general standards that steer primary actors but simultaneously leave them with a substantial zone of freedom in which to engage in self-regulation. Although it permits substantial autonomy, Cohen's conception of reflexive law is essentially topdown. This Review Essay offers an amended account of reflexive law in which data drawn from experience at the relatively local level are continually refined and transmitted to the relatively central standard-setter, which uses the data continually to update the standards all must meet. This amended account is accordingly both top-down and bottom-up, and for that reason it may be particularly well-suited to contexts-such as regulation of issues touching on sexual privacy-where the simple announcement of a controversial legal norm would meet with substantial opposition.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"384"},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123697","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 10
Who's watching the watchdogs? Responding to the erosion of research ethics by enforcing promises. 谁在监视看门狗?通过履行承诺来应对研究伦理的侵蚀。
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2003-01-01
Lori A Alvino
{"title":"Who's watching the watchdogs? Responding to the erosion of research ethics by enforcing promises.","authors":"Lori A Alvino","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>For more than thirty years, federal regulations--collectively known as the \"Common Rule\"--have governed all federally funded medical research involving human subjects. The Common Rule requires, inter alia, that any research facility receiving federal funds submit a Federal Wide Assurance (FWA) to the department or agency from which funding is sought. The FWA is a contract in which the research facility promises to abide by the Common Rule for all its research that involves human subjects, whether it is privately or federally funded. Drawing upon other instances in which third-party beneficiaries have successfully enforced government contracts, this Note argues that, upon discovery that a contract of assurance has been breached in the course of federally or privately funded research, a research subject should be able to maintain an action against the research institution as a third-party beneficiary to that contract.</p>","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 ","pages":"893-924"},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24975262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
USING MERGER REVIEW TO CURE PRIOR CONDUCT: THE EUROPEAN COMMISSION'S GE/HONEYWELL DECISION 利用并购审查纠正先前的行为:欧盟委员会对通用电气/霍尼韦尔的决定
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2003-01-01 DOI: 10.2307/1123703
Erin E. Holland
{"title":"USING MERGER REVIEW TO CURE PRIOR CONDUCT: THE EUROPEAN COMMISSION'S GE/HONEYWELL DECISION","authors":"Erin E. Holland","doi":"10.2307/1123703","DOIUrl":"https://doi.org/10.2307/1123703","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"74-110"},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123703","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68283829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Who's watching the watchdogs? Responding to the erosion of research ethics by enforcing promises. 谁在监视看门狗?通过履行承诺来应对研究伦理的侵蚀。
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2003-01-01 DOI: 10.2307/1123780
Lori A Alvino
{"title":"Who's watching the watchdogs? Responding to the erosion of research ethics by enforcing promises.","authors":"Lori A Alvino","doi":"10.2307/1123780","DOIUrl":"https://doi.org/10.2307/1123780","url":null,"abstract":"For more than thirty years, federal regulations--collectively known as the \"Common Rule\"--have governed all federally funded medical research involving human subjects. The Common Rule requires, inter alia, that any research facility receiving federal funds submit a Federal Wide Assurance (FWA) to the department or agency from which funding is sought. The FWA is a contract in which the research facility promises to abide by the Common Rule for all its research that involves human subjects, whether it is privately or federally funded. Drawing upon other instances in which third-party beneficiaries have successfully enforced government contracts, this Note argues that, upon discovery that a contract of assurance has been breached in the course of federally or privately funded research, a research subject should be able to maintain an action against the research institution as a third-party beneficiary to that contract.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"893-924"},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123780","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 8
CONTRACTS WITH OPEN OR MISSING TERMS UNDER THE UNIFORM COMMERCIAL CODE AND THE COMMON LAW: A PROPOSAL FOR UNIFICATION 统一商法典和普通法下条款公开或遗漏的合同:统一的建议
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2003-01-01 DOI: 10.2307/1123702
Nellie Eunsoo Choi
{"title":"CONTRACTS WITH OPEN OR MISSING TERMS UNDER THE UNIFORM COMMERCIAL CODE AND THE COMMON LAW: A PROPOSAL FOR UNIFICATION","authors":"Nellie Eunsoo Choi","doi":"10.2307/1123702","DOIUrl":"https://doi.org/10.2307/1123702","url":null,"abstract":"Historically, all contracts with open or missing terms were found void for indefiniteness unless there was partial performance. The Uniform Com? mercial Code (U.C.C. or Code) departedfrom the common law and permitted the enforcement of sale-ofgoods contracts with open or missing terms, pro? vided that certain requirements were met. Today, the treatment ofopenand missing-term contracts in the service context is inconsistent: Some jurisdic? tions apply the traditional common-law doctrine to hold such contracts inva? lid for indefiniteness, while others apply the U.C.C. analysis to hold such contracts enforceable. This Note considers the arguments supporting both the traditional common-law rule and modern U. C. C. approach. It argues that in light of modern commercial reality, the courts should apply the U. C. C. analysis to both sale-of-goods and service contracts. This unified approach would eliminate confusion in the current state oflaw and promote flexibility in commercial transactions for both goods and services.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"50-73"},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123702","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
Speedy Fred Taylor and the Ironies of Enterprise Liability 斯皮迪·弗雷德·泰勒和企业责任的讽刺
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2003-01-01 DOI: 10.2307/1123701
J. Witt
{"title":"Speedy Fred Taylor and the Ironies of Enterprise Liability","authors":"J. Witt","doi":"10.2307/1123701","DOIUrl":"https://doi.org/10.2307/1123701","url":null,"abstract":"Neither the academic literature nor the tort reform lobby has observed a deep irony in the American law of enterprise liability. The intellectual roots of enterprise liability lie in a late nineteenth-century movement to reengineer the workplace, a movement whose best known exponent was scientific manager Frederick Winslow Taylor. Along with a generation of managerial engineers, Taylor popularized broad ideas about managerial responsibility for the operations of enterprise - ideas that when loosed on the decentralized institutions of American tort law ultimately found one of their strongest expressions in the law of enterprise liability. Enterprise liability thus stands as one of the great twentieth-century examples of the unanticipated consequences of social action.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"103 1","pages":"1-49"},"PeriodicalIF":2.9,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123701","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 11
The Ossification of American Labor Law 美国劳动法的僵化
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2002-12-13 DOI: 10.2307/1123792
C. Estlund
{"title":"The Ossification of American Labor Law","authors":"C. Estlund","doi":"10.2307/1123792","DOIUrl":"https://doi.org/10.2307/1123792","url":null,"abstract":"This article argues that the ineffectuality of American labor law and the shrinking scope of collective representation and collective bargaining are partly traceable to the law's \"ossification\" - to its having been essentially sealed off both from democratic revision and renewal and from local experimentation and innovation to a remarkably complete extent and for a remarkably long time. The elements of this process of ossification are various and familiar; yet, once assembled, they make up an impressive set of barriers to innovation. Most obviously, the National Labor Relations Act has been virtually unamendable for over forty years due to an exceptionally durable congressional deadlock. But the labor law scheme has also been effectively cut off from \"market\"-driven competition by employers; from the entrepreneurial energies of individual plaintiffs and the plaintiff's bar, and the creativity they can sometimes coax from the courts; from variation and experimentation at the state or local level by representative or judicial bodies; from the winds of changing constitutional doctrine; and from emerging transnational legal norms. Finally, the National Labor Relations Board - the designated institutional vehicle for adjusting the labor laws to modern conditions - is increasingly hemmed in by the age of the text and the large body of judicial interpretations that has grown up over the years. While the argument may seem to counsel only pessimism about the prospects for reform, it may also help to identify potential pathways of change that have not been fully appreciated. Indeed, some of those pathways are being paved by the process of ossification itself. By impelling private parties to find their own paths outside of the existing regime, the ossification of labor law may be setting in motion the very forces that may eventually lead toward legal change.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"14 1","pages":"1527-1612"},"PeriodicalIF":2.9,"publicationDate":"2002-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123792","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 116
'THE SUPREME ... CRIME' AND ITS ORIGINS: THE LOST LEGISLATIVE HISTORY OF THE CRIME OF AGGRESSIVE WAR “至高无上的……犯罪及其起源:侵略战争罪缺失的立法历史
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2002-12-01 DOI: 10.2307/1123729
Jonathan A. Bush
{"title":"'THE SUPREME ... CRIME' AND ITS ORIGINS: THE LOST LEGISLATIVE HISTORY OF THE CRIME OF AGGRESSIVE WAR","authors":"Jonathan A. Bush","doi":"10.2307/1123729","DOIUrl":"https://doi.org/10.2307/1123729","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"102 1","pages":"2324-2423"},"PeriodicalIF":2.9,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123729","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 61
GARDEN LEAVE: A POSSIBLE SOLUTION TO THE UNCERTAIN ENFORCEABILITY OF RESTRICTIVE EMPLOYMENT COVENANTS 花园休假:限制性雇佣契约不确定可执行性的可能解决方案
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2002-12-01 DOI: 10.2307/1123728
Greg T. Lembrich
{"title":"GARDEN LEAVE: A POSSIBLE SOLUTION TO THE UNCERTAIN ENFORCEABILITY OF RESTRICTIVE EMPLOYMENT COVENANTS","authors":"Greg T. Lembrich","doi":"10.2307/1123728","DOIUrl":"https://doi.org/10.2307/1123728","url":null,"abstract":"","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"102 1","pages":"2291-2324"},"PeriodicalIF":2.9,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123728","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284469","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 10
Dual Resident Voting: Traditional Disenfranchisement and Prospects for Change 双重居民投票:传统的剥夺公民权和变革的前景
IF 2.9 2区 社会学
Columbia Law Review Pub Date : 2002-11-01 DOI: 10.2307/1123664
A. Ostrow
{"title":"Dual Resident Voting: Traditional Disenfranchisement and Prospects for Change","authors":"A. Ostrow","doi":"10.2307/1123664","DOIUrl":"https://doi.org/10.2307/1123664","url":null,"abstract":"In modern times, a large and growing number of Americans qualify as bona fide residents of two or more locales. These dual residents are subject to local taxes and ordinances and are profoundly affected by policies that concern their second-home community. Yet, in most states, individuals are prohibited from voting in more than one location through voting statutes that equate residence with domicile. Recently, the Second Circuit upheld a New York election law that prevents second-home owners from voting in both of their residential districts. This Note argues that extending the franchise in local elections to individuals who qualify as bona fide residents of a community, regardless of whether they already qualify to vote in another community, is required under the Equal Protection Clause of the Fourteenth Amendment. Such an extension is also supported by normative arguments arising from the democratic tradition of government by the consent of the governed and against taxation without representation.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":"102 1","pages":"1954-1991"},"PeriodicalIF":2.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1123664","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68284087","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 10
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