Copyright (c) 2008 Brooklyn Law School All rights reserved. http://works.bepress.com/brooklaw Recent documents in Selected Works @ Brooklyn Law School en-us Sun, 05 Oct 2008 06:16:46 PDT 3600 http://works.bepress.com/michael_cahill/14 http://works.bepress.com/michael_cahill/14 Tue, 23 Sep 2008 11:54:07 PDT Criminalizing arson is both easy and hard. On the substantive merits, the conduct of damaging property by fire uncontroversially warrants criminal sanction. Indeed, punishment for such conduct is overdetermined, as the conduct threatens multiple harms of concern to the criminal law: both damage to property and injury to people. Yet the same multiplicity of harms or threats that makes it easy to criminalize "arson" (in the sense of deciding to proscribe the underlying behavior) also makes it hard to criminalize "arson" (in the sense of formulating the offense(s) that will address that behavior).This article asks whether adopting one or more arson offenses is the best way for criminal law to address the conduct in question, or whether that conduct is more properly conceptualized, criminalized, and punished as multiple distinct offenses.The original publication is available at www.springerlink.com: http://www.springerlink.com/content/140730475v3575mm/ Michael T. Cahill Criminal Law and Procedure http://works.bepress.com/miriam_baer/8 http://works.bepress.com/miriam_baer/8 Thu, 18 Sep 2008 14:46:12 PDT Miriam Baer http://works.bepress.com/stacy_caplow/36 http://works.bepress.com/stacy_caplow/36 Thu, 04 Sep 2008 16:44:30 PDT Stacy Caplow http://works.bepress.com/stacy_caplow/35 http://works.bepress.com/stacy_caplow/35 Thu, 04 Sep 2008 16:36:58 PDT Stacy Caplow http://works.bepress.com/stacy_caplow/33 http://works.bepress.com/stacy_caplow/33 Thu, 04 Sep 2008 15:30:51 PDT Stacy Caplow http://works.bepress.com/elizabeth_fajans/20 http://works.bepress.com/elizabeth_fajans/20 Wed, 03 Sep 2008 12:28:31 PDT Although complaints in civil actions function within a web of conventional, statutory, and tactical constraints, they are nonetheless narratives. Thus practitioners whose skills do not go beyond bare-bones form-book pleading risk disserving their clients because legal readers, judges included, are as responsive to the call of stories as other readers. Yet, unfortunately, in mainstream modern pleading practice, storytelling tends to be seen either as inimical to effective pleading or as rhetorical adornment to be reserved for compelling cases. This creates a false choice for practitioners and teachers alike, and when narrative is seen as inherent in pleading, new methods of drafting and teaching follow. In short, the more useful question is not whether to tell a story, but how to tell it. Part I provides an overview of the evolution of pleading practice and the relation of pleading and narrative, concluding that even in courts and claims where such minimal pleading is permitted−fewer today than the drafters of the Federal Rules of Civil Procedure might have intended−the writer would do well to meld the skills of storyteller with the skills of tactician, balancing the instrumental and rhetorical functions of complaints. Part II gives an overview of basic narrative theory and narrative techniques and shows how those techniques can be applied to complaint drafting. In particular, we discuss how storytelling techniques like character development, plot sequence, and detail can contribute to the creation of a complaint that has "narrative rationality"-that is, a complaint that tells a familiar "stock story" from the canon of legally cognizable wrongs, comports with the known facts, and provides a meaningful translation of the plaintiff's experience, evoking in the reader a desire that justice be done. Finally, Part III offers suggestions for teaching ourselves to draft complaints that use narrative techniques to advance the client's cause while remaining true to the client's experience. Elizabeth Fajans Arts and Literature http://works.bepress.com/elizabeth_fajans/19 http://works.bepress.com/elizabeth_fajans/19 Wed, 03 Sep 2008 11:18:25 PDT Although complaints in civil actions function within a web of conventional, statutory, and tactical constraints, they are nonetheless narratives. Thus practitioners whose skills do not go beyond bare-bones form-book pleading risk disserving their clients because legal readers, judges included, are as responsive to the call of stories as other readers. Yet, unfortunately, in mainstream modern pleading practice, storytelling tends to be seen either as inimical to effective pleading or as rhetorical adornment to be reserved for compelling cases. This creates a false choice for practitioners and teachers alike, and when narrative is seen as inherent in pleading, new methods of drafting and teaching follow. In short, the more useful question is not whether to tell a story, but how to tell it. Part I provides an overview of the evolution of pleading practice and the relation of pleading and narrative, concluding that even in courts and claims where such minimal pleading is permitted?fewer today than the drafters of the Federal Rules of Civil Procedure might have intended?the writer would do well to meld the skills of storyteller with the skills of tactician, balancing the instrumental and rhetorical functions of complaints. Part II gives an overview of basic narrative theory and narrative techniques and shows how those techniques can be applied to complaint drafting. In particular, we discuss how storytelling techniques like character development, plot sequence, and detail can contribute to the creation of a complaint that has "narrative rationality"-that is, a complaint that tells a familiar "stock story" from the canon of legally cognizable wrongs, comports with the known facts, and provides a meaningful translation of the plaintiff's experience, evoking in the reader a desire that justice be done. Finally, Part III offers suggestions for teaching ourselves to draft complaints that use narrative techniques to advance the client's cause while remaining true to the client's experience. Elizabeth Fajans Arts and Literature http://works.bepress.com/dana_brakman_reiser/14 http://works.bepress.com/dana_brakman_reiser/14 Wed, 27 Aug 2008 13:41:04 PDT This essay examines Google's adoption of the novel and unorthodox for-profit philanthropy model. Google created a division of its for-profit company that is tasked with pursuing philanthropic activities. Specifically, this division is responsible for addressing the global issues of climate change, poverty, and emerging diseases. Of course, companies have long blended philanthropic and business objectives. They make contributions, commit to corporate social responsibility, or even form as social enterprises. For-profit philanthropy, though, differs from these familiar techniques in both structure and scale. Likewise, for-profit philanthropy stands in stark contrast to the nonprofit, tax-exempt form of organization typically used by those pursuing exclusively philanthropic endeavors. This essay investigates the for-profit philanthropy model, drawing out these distinctions as well as the reasons why Google chose to adopt it. These reasons reveal a fascinating mismatch between Google's philanthropic vision and that of nonprofit law. Exploring this divergence exposes the fundamental policy choices underlying the law's structures for philanthropic activity, as well as the undertheorized boundary between nonprofits and for-profits. Dana Brakman Reiser Corporations Law and Society http://works.bepress.com/ursula_bentele/15 http://works.bepress.com/ursula_bentele/15 Tue, 19 Aug 2008 12:51:03 PDT MINING FOR GOLD: THE CONSTITUTIONAL COURT OF SOUTH AFRICA'S EXPERIENCE WITH COMPARATIVE CONSTITUTIONAL LAWUrsula BenteleAbstractDespite a long history of referring to foreign law in its opinions, the Supreme Court's recent citations to such sources have caused heated controversy. Critics warn of threats to sovereignty as well as serious flaws in the way judges use outside authority. Largely missing from this debate is any probing examination of the actual practice of engaging with foreign authorities. This article attempts to fill the empirical void by analyzing closely one court that has used foreign law extensively: the Constitutional Court of South Africa. The author conducted interviews with eight former and current justices who discussed both the value gained from the practice of engaging with foreign law and their ways of addressing the concerns expressed by American critics. Whether identifying universal norms, engaging in a dialogue to help clarify an issue, or gaining insight into comparable constitutional provisions, these justices see clear benefits from exploring the opinions of constitutional courts in other parts of the world. Yet they approach such outside sources with great care, fully aware of the potential hazards of transplanting foreign legal concepts and conscientiously avoiding selective citation only to favorable outside authorities. Detailed analysis is provided of several cases containing significant references to foreign law, along with commentary from the justices on how particular opinions were enriched by examination of other courts' treatment of the same issues. These findings bear on the current debate and, in a world where many other high courts engage in constitutional comparativism, suggest that the United States Supreme Court would do well by joining the conversation. Ursula Bentele Comparative Law Constitutional Law Courts Judges Jurisprudence http://works.bepress.com/derek_bambauer/25 http://works.bepress.com/derek_bambauer/25 Tue, 19 Aug 2008 11:19:09 PDT While China's Internet censorship receives considerable attention, censorship in the United States and other democratic countries is largely ignored. The Internet is increasingly fragmented by states' different value judgments about what content is unacceptable. States differ not in their intent to censor material - from political dissent in Iran to copyrighted songs in America - but in the content they target, how precisely they block it, and how involved their citizens are in these choices. Previous scholars have analyzed Internet censorship from various values-based perspectives, and have sporadically addressed key principles such as openness, transparency, narrowness, and accountability in evaluating this practice. This Article is the first to unite these principles into a coherent methodology that, by focusing on process, is applicable to a range of normative frameworks. Drawing upon scholarship in deliberative democracy, health policy, labor standards, and cyberlaw, the Article employs this new approach to clarify highly contentious policy debates about sales of censorship technology by Western companies, public law regulation of these transactions, and third-party analysis of states' Internet censorship. Derek E. Bambauer Communications Law Computer Law Intellectual Property Law Law and Society Law and Technology