Harvard Law School Student Scholarship Series

The Public Value and Legal Battles of a Single Donor Museum

Emmeline Babb — Tue, 11 Sep 2007 13:13:10 PDT

This paper analyzes why the Barnes Foundation could not continue as Dr. Albert Barnes had originally envisioned. Why did the courts have to resort to deviation? Can there be lessons learned from the Barnes for other single donor museums? I look at a few single donor museums and make a comparative analysis of legal history, governance, economics, and establishing documents to see how these institutions can best adapt and survive. My focus is on the Barnes Foundation, but, in varying degrees of detail, I also look at the Isabella Stewart Gardner Museum, the J. Paul Getty Museum, and The Terra Museum of American Art. In Part II, I examine at public access to these single donor museums and how sometimes the donors’ wishes conflict with public benefit. It is not only donor intent that sometimes conflicts with public access, but zoning laws as well. Part III considers how single donor institutions may be especially susceptible to the doctrines of cy pres and deviation. I also analyze how these institutions’ missions are affected when a court orders a deviation or cy pres. Part IV examines issues of donor control of various institutions. In this section I explore not only single donor museums, but compare this type of donation with funding of an already established public museum. Are there more conflicts with a donor trying to “buy” influence at a pre-existing museum rather than starting his own museum? Lastly, because it is impossible to understand the personality of a single donor museum without knowing who the single donor is, I have included appendices that give the background and history of Dr. Albert Barnes and Isabella Stewart Gardner.

Rubin v. The Islamic Republic of Iran: a Struggle for Control of Persian Antiquities in America

James Wawrzyniak — Thu, 21 Jun 2007 06:41:42 PDT

This paper analyzes the multi-jurisdictional attachment and execution proceedings taking place sub nomine Rubin v. The Islamic Republic of Iran. The Rubin litigation raises novel issues in the areas of art law and foreign relations. The first section of the paper evaluates whether third parties have standing to raise a sovereign state’s immunity under the Foreign Sovereign Immunities Act (“FSIA”). The second delves into the particulars of the commercial use exception to the FSIA. The final section considers various provisions of the Terrorism Risk Insurance Act of 2001, a new law with little judicial gloss. These three main issues are evaluated within a broader art law framework as historic and valuable Persian antiquities stand at the center of the execution proceedings.

Marital Status as Property: Toward a New Jurisprudence for Gay Rights

Goutam U. Jois — Fri, 04 May 2007 06:48:22 PDT

Affordable Housing and Civic Participation

Goutam U. Jois — Fri, 04 May 2007 06:43:07 PDT

Looking Back and Looking Forward: Sarbanes-Oxley and the Future of Corporate Governance,

Goutam U. Jois — Fri, 04 May 2007 06:35:48 PDT

Regulation and Innovation: Comparing the U.S. and European Stock Trading Markets

Stavros Gkantinis — Tue, 09 Jan 2007 09:11:05 PST

ABSTRACT: In the last two years, the major jurisdictions for equity trading, the U.S. and the E.U., introduced significant reforms in their market structure regulation, following diametrically opposite approaches. While the E.U. effort is deregulatory and decentralized, aiming to facilitate competition among marketplaces and enhance investors’ choices, the U.S. regulation limits competition in a critical respect: price. To understand this divergence and predict likely effects on the underlying markets, this paper compares the previous regimes in the two jurisdictions and their outcomes. It illustrates that European market participants in a fiercely competitive regulatory environment revolutionized their trading services and organizational structure. In contrast, innovation in the U.S. has been modest, largely due to the long-standing dominance of the New York Stock Exchange, a dominance reinforced by SEC rules limiting competition on price. As recent reforms strengthen the earlier choices of each jurisdiction, the paper argues that the US policy of limiting price competition extends past failures into future policies. The conclusions of this paper illuminate debates on the optimal degree of regulatory intervention and theories of allocation of regulatory authority.

The Rise and Rise of the Specialty Journals at Harvard Law School

Jennifer L. Carter — Mon, 08 Jan 2007 14:09:44 PST

The Evidence Is "Clear and Convincing": Santosky v. Kramer Is Harmful to Children.

Rebecca C. Mandel — Wed, 06 Dec 2006 12:12:42 PST

This paper focuses on the Supreme Court’s 1982 decision in Santosky v. Kramer and argues that the Santosky Court’s imposition of a clear and convincing burden of proof in termination of parental rights cases is a threat to children’s rights. Specifically, I argue that the opinion suffers from empirical flaws in reasoning (such as the Court’s improper understanding of how the burden of proof affects likelihood of error); these flaws combine to justify the Court’s faulty presumption against termination of parental rights. In addition, I argue that the Court’s underlying philosophy regarding children undermines any recognition of rights unique to children. Subsequent sections of the paper criticize the various calls for the expansion of Santosky’s holding by further heightening the burden of proof on the government or by applying the Santosky burden in other family law adjudications. The paper instead points to auspicious decisions in various state courts that provide groundwork for the articulation of children’s rights in the context of parental rights termination.

Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students

Nicholas Lee Townsend — Wed, 06 Dec 2006 11:35:52 PST

As the debate over who should be considered learning disabled rages, a recent trend toward narrowing the definition of disability has emerged under the Americans with Disabilities Act. This attempt to draw a more distinct line between the disabled and society at large in the ADA context is in conflict with recent No Child Left Behind legislation which tries to fold disabled students into the mainstream, taking a one-size-fits-all approach to education. Attempts based on No Child Left Behind to change the way learning disabilities are identified may radically alter the entire definition of learning disability. By eliminating the individual ability component of the old standard for identifying learning disabilities, the IDEIA transforms disability identification into a rule-based process and undermines the integrity of the learning disability classification. Measuring learning disability by comparison to the average person instead of an individual’s potential is underinclusive. The key rhetorical move in hiding how significant this change will be is framing the ceiling which is being placed on the potential of the learning disabled as a floor. In this context, No Child Left Behind’s guarantee that all children will learn to read and write actually limits the rights of disabled students because the minimal floor it supposedly creates in American education becomes a ceiling on disabled children’s right to receive help. Under this model, average performance could become a cutoff for the learning disabled. By focusing too heavily on numeric achievement on standardized tests to the exclusion of qualitative factors and considerations of individual ability this new rule-based approach threatens to supplant the old individualized standard creating an upper boundary on students’ ability to claim protection. Thus, learning disabled Americans may be limited to nothing more than average regardless of their individual potential.

Unraveled: The Failure of Products Liability Markets

Michael J. Fluhr — Wed, 06 Dec 2006 11:31:57 PST

Conventional law and economics wisdom suggests that efficiency is served by allowing purchasers of goods to waive strict liability. Intuition suggests that where purchasers can bear risk of product defects more cheaply than can sellers and manufacturers, laws should permit them to do so. However, even rational and completely informed buyers are vulnerable to a market failure, which this Article dubs “unraveling,” that may cause all buyers to successively waive strict liability even though it may be more efficient ex ante if they did not. This Article explains, models, and explores this unraveling phenomenon. It distinguishes the markets in which unraveling is likely to occur and concludes by suggesting rules and methodologies for pinpointing and preventing unraveling.

Mastering the “Political Marketplace” Metaphor: The Labor-Centric Alternative

Thomas Tso — Wed, 06 Dec 2006 11:29:01 PST

The use of the political marketplace analogy is common in the academic literature on the law of democracy. The analogy between a consumer and voter lies at the basis of many of these analogies. This article presents an alternative vision of the marketplace analogy. Instead of a consumer-voter, this article presents a vision of democracy relying on an analogy between laborer and voter. Through the use of judicial opinions and discussions in labor law and basic labor economics, this article hopes to show the usefulness of re-thinking the political marketplace analogy and how it could be applied to policy and debates within the literature on democratic design.

The Rationality of Law Students' Career Choices

Aaron S. Haas — Wed, 06 Dec 2006 11:29:01 PST

Two of the major problems confronting the legal profession today are increasing rates of job dissatisfaction and the persistent problem of encouraging lawyers to work in public interest settings. These two problems are actually connected in an important way. Researchers have found that lawyers earning the highest salaries, typically in large law firms, are also the most dissatisfied with their profession, while lawyers working for government agencies, public interest organizations, and educational institutions are among the most satisfied. In other words, encouraging more law students to enter public service law could address both the problem of unhappiness in the profession and the underrepresentation of disadvantaged people with legal needs. Indeed, by reconnecting the legal profession with the notion of service to society, a professional ethic that seems to have disappeared in recent decades, we may be able to improve the profession more broadly for its own sake and for the positive impact it can and should have on society at large.

In this essay, I examine why and how so many law students who have no intention of working at a firm or are interested in public interest as they begin law school end up accepting offers from large firms upon graduation. To address this paradox, we must understand the logical processes law students use in making their career decisions, and how these process may be flawed or biased. Recent findings in behavioral economics, which show the limits of rationality, shed light on this question. In particular, behavioral economics shows us that people have bounded willpower, bounded rationality and bounded self-interest, which all serve to encourage behavior which is not strictly self-interest maximizing, as that concept is understood in traditional economics.

In this article, I argue that law students have shown bounded willpower, bounded rationality and bounded self-interest in this context. I divide this essay into three parts. In the first part, I address this question by looking at the bounded willpower, bounded rationality, and bounded self-interest of law school students. In the second part, I look at the effectiveness, or lack thereof, of different ways law schools have responded to the limited rationality shown by students, in particular public interest requirements and loan forgiveness plans. In the final part, I make suggestions for ways of addressing this issue, in light of the lessons learned from the first two parts.

Irrational Basis: The Supreme Court, Inner Cities, and the New "Manifest Destiny"

Dean A. Floyd II — Wed, 06 Dec 2006 11:16:51 PST

The courts’ role in urban renewal has been as irrational as inevitable. The court’s definition of a “public use,” however, does not conform to the logic of prior decisions on the issue, nor does it square with the historical understanding of a public use. More troubling than the majority’s legal reasoning is the policy it is attempting to promote: a perverted variation of the “manifest destiny” concept of the nineteenth century, only inner cities are the new frontier and minorities are the new Indians. And like the Apache, Utes, and Sioux of the old American West, the poor and disempowered will be forced to vacate the communities and properties that rightfully belong to them in the name of progress, or better yet, economic development. This essay will offer a new interpretation of the Fifth Amendment’s Public Use Clause that bases the definition of a “public use” upon the degree of governmental regulation with respect to the future use. I will argue that this serves as a more “workable” standard than the one currently employed by the majority and the dissenters in Kelo. This is a definition that is not only reinforced by logic, but also the history of the early Republic, state legislation, case law, and the text of the United States Constitution.

Application of the European Convention on Human Rights by the European Court of Justice

Adam D J Balfour — Wed, 06 Dec 2006 11:06:45 PST

The following article, written in March 2005, examines the European Court of Justice's application of the European Convention on Human Rights. In this paper, the author discusses a number of improvements that could be made to the current set up of the courts, including the novel idea of a 'Pre-decision interpretation questions'system, which could facilitate the application of the ECHR by both the ECJ and the ECHR.

Videoconferencing in Immigration Proceedings

Aaron S. Haas — Wed, 06 Dec 2006 11:03:28 PST

In this article, I examine the growing use of videoconferencing technology in immigration proceedings. These hearings raise a number of concerns that have not yet been fully explored, particularly in light of a growing body of scientific evidence that video-mediated personal interactions are perceived significantly differently by the participants and observers than in-person interactions. Recent behavioral and psychological studies have found that key differences between the two forms of communication, such as the lack of eye contact and the difficulty of detecting non-verbal cues, have profound impacts on the cognitive and emotional response of the listener, as well as on the perception of the speaker's credibility and guilt.

Personal testimony is particularly important in the immigration removal context, in which respondents often lack the resources to provide evidence and witnesses. These proceedings may violate a number of important rights that are fundamental to our conception of justice: the right to be present in court when a matter of great importance to your future is under consideration, the right to personally confront the witnesses and evidence against you, and the right to effective representation by an attorney.

In this article, I first explain the growing use of this technology in American courts, including immigration proceedings. Next, I will examine the problems raised by this new technology in the courtroom, specifically with regard to its impact on communication between the respondent and the judge. In the third part, I will show how these problems violate the fundamental rights of the detainee -- to presence, confrontation, and counsel. Finally, I will conclude with some ideas on how to mitigate these problems while still taking advantage of new technology, and some examples of good uses of videoconferencing technology.

Can't Touch This! Private Property,Takings, and the Merit Goods Argument

Goutam U. Jois — Wed, 06 Dec 2006 10:35:34 PST

Over the past decades, economic theory has gained increasing influence in legal thinking, political theory, and public policy. This article argues that the popular characterization of economics as “value-neutral” obscures the fact that there are fundamental value judgments in any framework influenced by economics. Acknowledging this fact will shift the terms of the debate: instead of a “neutral” policy and one that “imposes values,” we see that both policies in fact entail values imposition to some extent. The public discourse is thus rendered more intellectually honest. The article progresses in three parts. First, I describe the concept of “merit goods.” This concept, introduced fifty years ago, has met with resistance from traditional economists because it justifies interference with individuals’ preferences and imposing values, something economics ostensibly rejects. Second, I show that the merit goods concept nonetheless can be used to clarify U.S. Supreme Court cases regarding regulatory takings, indicating that values imposition is not just a theoretical matter. Finally, I survey the writings of Hayek, Nozick, Buchanan, and Posner to show that even those authors who claim to be true to the principles of economics nonetheless have elements in their theory that involve imposition of certain values — that is, involve merit goods. Merit goods, then, enrich those scholars’ theories, properly describe constitutional reality, and add a needed dimension to economics.