Essays

Many have wondered in print about the characteristics and experiences of the women who now seem destined to assume a proportionate share of lawyering responsibilities. How have they experienced law school and legal practice? Have they been welcomed or abused? Have they enjoyed or endured the rigors of qualification for the bar and the challenges of practice? How, if at all, have women affected law schools and legal practice? Do large numbers of women in the profession bring different sensibilities? Differently developed strengths? Different approaches to legal work? If women express dissatisfaction with law school, is it because they are unsuited or ill-prepared for it? Or are they simply more likely to question shortcomings of legal education that inhibit learning for all students?

In this Essay, Professor Cross responds to recent academic efforts to develop a robust judicial federalism doctrine, which advocate increased judicial review of legislative activities and suggest that an expanded federalism doctrine would have significant, negative consequences. Professor Cross challenges the assumption that courts would apply a principled, neutral doctrine of federalism, using empirical evidence to demonstrate that courts consistently have invoked federalism for political or ideological reasons. He suggests that the flexibility of the proposed federalism doctrines would allow judges to manipulate results to achieve ideological ends and that the resulting intrusive judicial review would implicate separation of powers concerns and impair legislative functioning. He argues further that institutional realities-the susceptibility of judges to the concerns and influence of the other branches of government-would prevent such federalism from being a meaningful restriction on the powers of the federal government in any event. Professor Cross concludes that proponents of expanded federalism should focus their efforts on creating a practicable doctrine that is not as vulnerable to ready manipulation and high systemic costs.

In this Essay, Professor Ryan uses a recent decision by the Connecticut Supreme Court, Sheff v. O’Neill, to explore both the limits and the possibilities of school finance litigation, and to begin an examination of the relationship between school finance and desegregation. Using Sheff as his starting point, Professor Ryan contends that school “finance” litigation need not, and perhaps should not, be solely about money. He suggests that Sheff and the experience of the Hartford schools provide strong evidence of the limited efficacy of increased expenditures in racially and socioeconomically isolated schools. Professor Ryan then explains how the underlying right recognized in school finance cases–the right to an adequate or equal education–can support alternative claims for relief. Specifically, he suggests that these rights can support such nonmonetary remedies as racial and socioeconomic integration and school choice.

Walter J. Derenberg Professor of Trade Regulation, New York University School of Law. B.A., 1956, Vassar College; LL.B., 1961, New York University.

In this Essay, Professor Eleanor Fox analyzes regulatory competition and regulatory federalism with respect to competition law. In considering whether some degree of higher-than-national-level regulation is wise Fox observes possible races to the bottom and the top, as well as the race to be the model for the world. She then analyzes regulatory disregard: the tendency of national systems and their actors to disregard their neighbors and to disregard the problem of excessively overlapping regulatory systems. Professor Fox concludes that there is a modest and marginal race to the bottom; that there is also a race to the top; that there is little competition as such among competition regimes to attract investment, but there is competition between the United States and the European Union to export competition law models to the rest of the world; and that in view of nationalistic races and regulatory disregard, there is a case for the internationalization of certain specific procedures and principles.

Months have passed, commemorations have been held at ground zero, and Congress has declared September 11 a yearly National Day of Remembrance. Surely it will be another date that will live in infamy; no law is needed to ordain that, and no law could change it. But September 11 was, and should be, something more. And after the devastation is cleared, new buildings raised up, and commerce and finance return–all critical to the prosperity of New York and the nation–the other great test will be whether we sustain the moral power surge which moved across the city and this country in response to the terrorist attack.

Professor Lawrence P. King, who died on April 1 of this year at the age of seventy-two, gave more than a half-century of remarkable service to New York University School of Law. He entered the Law School in September, 1950. Larry, as he was known to all, was both the Articles Editor and the Book Review Editor of the Law Review, a prodigious feat given that it produced eight issues per year. Larry received his LL.B. in 1953, worked for two years as an attorney at Paramount Pictures, and then earned an LL.M. at the University of Michigan. In 1957, Larry took his first teaching position as an Assistant Professor at Wayne State University Law School in Detroit. He returned to New York University School of Law in 1959 as an Associate Professor and became a full Professor in 1993. In later years, Larry was a visiting professor at Berkeley, Temple, and Houston, and at three Israeli universities: Hebrew, Tel Aviv, and Haifa.

Larry King was “the practical scholar” for bankruptcy. In 1992, Harry Edwards, a District of Columbia Court of Appeals judge who has been a lecturer at New York University Law School since 1989, provided a definition of “practical scholarship” that defines Larry’s scholarship: “[I]t analyzes the law and the legal system with an aim to instruct attorneys in their consideration of legal problems; to guide judges and other decisionmakers in their resolution of legal disputes; and to advise legislators and other policymakers on law reform.”‘

We lost a gifted teacher when Larry King died on April 1. Many constituencies rightfully can claim this loss, including New York University School of Law, where he was the Charles Seligson Professor of Law and where he taught for forty years (he called it the “Law School”); and the world’s legal community: courts, practitioners, and scholars that regularly relied on his clear, practical writings such as the authoritative Collier bankruptcy treatise.

In this Essay, Andrew Guzman proposes internationalization of antitrust law to supplant current methods of antitrust regulation across national borders. Specifically, instead of relying on local regulation, bilateral agreements between states, or a choice-of-law rule for antitrust enforcement, countries should adopt universal substantive standards. Moreover, Guzman recommends the World Trade Organization (WTO), which already employs a dispute resolution mechanism, as the governing forum for international antitrust issues. There, states can negotiate transfer payments in one international transaction to achieve agreement in another. Upon evaluating Professor Eleanor Fox’s proposal of a stand-alone World Competition Forum that would specialize exclusively in international antitrust negotiations, Guzman concludes that the WTO is the preferred forum. Its dispute resolution system would facilitate substantive cooperation among countries by allowing for concessions exchanged in antitrust as well as in other areas of international relations.

Professor of Law, Harvard University. B.A., 1975, Yale University; B.A., 1977, Oxford University; J.D., 1980, Yale University.

In this Essay, Professor Richard Fallon explains and defends the constitutional status of stare decisis. In part, Professor Fallon responds to a recent article by Professor Michael Stokes Paulsen, who argues that Supreme Court adherence to precedent is a mere “policy,” not of constitutional stature, that Congress could abolish by statute. In particular, Paulsen argues that Congress could enact legislation denying precedental effect to Supreme Court decisions establishing abortion rights. In reply, Professor Fallon contends that Paulsen’s argument depends on contradictory premises. If stare decisis lacked constitutional stature, then under Paulsen’s methodological assumptions it also would be indefensible as a “policy,” because a mere policy could not legitimately displace results that the Constitution otherwise would require. In defending the constitutional status of stare decisis, Professor Fallon develops arguments based on the text, structure, and history of the Constitution. But he emphasizes that the “legitimacy” of stare decisis is supported, partly independently, by its entrenched status and by the contribution that it makes to the justice and workability of the constitutional regime. More generally, Professor Fallon argues that constitutional legitimacy rests upon the relatively contestable bases of widespread acceptance and reasonable justice, and not upon “consent” to be governed by the written Constitution.