Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 141

Full-Text Articles in Entire DC Network

The Texture Of Loyalty, Deborah A. Demott Jan 2006

The Texture Of Loyalty, Deborah A. Demott

Faculty Scholarship

This paper examines whether and how reforms in corporate governance structures and practices in the United States may reshape conventional notions of the fiduciary duties owed by independent directors of public companies. The paper identifies two focal points for the evolution of directors' fiduciary duties. First, various reforms in corporate governance assign more specific responsibilities to directors, arguably reorienting directors' loyalty to due discharge of a specified function along with ongoing or residual duties of loyalty owed in more general terms to the corporation and its shareholders. The relationships among these specific duties and more general ones may be complex, …


Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington Jan 2006

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Faculty Scholarship

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills …


Neo-Strategicon: Modernized Principles Of War For The 21st Century, Charles J. Dunlap Jr. Jan 2006

Neo-Strategicon: Modernized Principles Of War For The 21st Century, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley Jan 2006

Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


The Functional Method Of Comparative Law, Ralf Michaels Jan 2006

The Functional Method Of Comparative Law, Ralf Michaels

Faculty Scholarship

The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, "the functional method" is a trifold misnomer: There is not one ("the") functional method …


Fair Pay For Chief Executive Officers: Maximizing Firm Value By Minimizing Income Disparity, James D. Cox Jan 2006

Fair Pay For Chief Executive Officers: Maximizing Firm Value By Minimizing Income Disparity, James D. Cox

Faculty Scholarship

This article links the growing income disparity in America to a possible metric that can be used to better assess the appropriate level of executive compensation. The article reviews the intellectual, commercial, cultural, and judicial forces that have each contributed toward the significant rise in executive compensation. Of particular note is the unqualified failure of courts and outside directors to provide meaningful supervision of executive compensation. This failure in part reflects the failure of society to develop guidance regarding what is the appropriate level of compensation for executives of public companies. The article concludes by reviewing evidence that income disparity …


Dunlap’S Very Subjective Reading List For Air Force Judge Advocates, Charles J. Dunlap Jr. Jan 2006

Dunlap’S Very Subjective Reading List For Air Force Judge Advocates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Legal Issues In Coalition Warfare: A U.S. Perspective, Charles J. Dunlap Jr. Jan 2006

Legal Issues In Coalition Warfare: A U.S. Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher Jan 2006

Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher

Faculty Scholarship

In the summer of 2004, New Haven Mayor John DeStefano, Jr. announced plans to demolish the all-but-derelict New Haven Coliseum and replace it with a publicly financed redevelopment that would include a 300-room hotel. Critics of the plan immediately objected that the hotel-even if it were completed-was a poor public investment, that there was no demand for such a hotel, and that the money could be better spent elsewhere. Some critics pointed to New Haven's own checkered history of major development projects, especially the failed downtown mall and the famously catastrophic Oak Street redevelopment. As of February 2006, the city …


Comment, Saving Toby: Extortion, Blackmail, And The Right To Destroy, Stephen E. Sachs Jan 2006

Comment, Saving Toby: Extortion, Blackmail, And The Right To Destroy, Stephen E. Sachs

Faculty Scholarship

On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten - unless the website's readers sent $50,000 to save his life. Though Toby's owner has since granted him a temporary reprieve - until Nov. 6, 2006 - the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one's own property. The law thus provides insufficient protection to a variety of resources on which others …


From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs Jan 2006

From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs

Faculty Scholarship

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant. " This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The …


The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos Jan 2006

The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos

Faculty Scholarship

The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather …


Checks And Balances: Congress And The Federal Court, Paul D. Carrington Jan 2006

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …


Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2006

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.


The Unwarranted Conclusions Drawn From Vincent V. Lake Erie Transportation Co. Concerning The Defense Of Necessity, George C. Christie Jan 2006

The Unwarranted Conclusions Drawn From Vincent V. Lake Erie Transportation Co. Concerning The Defense Of Necessity, George C. Christie

Faculty Scholarship

No abstract provided.


Voices From The Stars? America's Generals And Public Debates, Charles J. Dunlap Jr. Jan 2006

Voices From The Stars? America's Generals And Public Debates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Does Falling Smoking Lead To Rising Obesity?, Jonathan Gruber, Michael D. Frakes Jan 2006

Does Falling Smoking Lead To Rising Obesity?, Jonathan Gruber, Michael D. Frakes

Faculty Scholarship

The strong negative correlation over time between smoking rates and obesity have led some to suggest that reduced smoking is increasing weight gain in the U.S.. This conclusion is supported by the findings of Chou et al. (2004), who conclude that higher cigarette prices lead to increased body weight. We investigate this issue and find no evidence that reduced smoking leads to weight gain. Using the cigarette tax rather than the cigarette price and controlling for non-linear time effects, we find a negative effect of cigarette taxes on body weight, implying that reduced smoking leads to lower body weights. Yet …


Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz Jan 2006

Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz

Faculty Scholarship

Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …


Universal Rights And Wrongs, Michael E. Tigar Jan 2006

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.


When Does Deliberating Improve Decisionmaking?, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2006

When Does Deliberating Improve Decisionmaking?, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.


Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast Jan 2006

Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.


Courts, Congress, And Public Policy, Part I: The Fda, The Courts, And The Regulation Of Tobacco, Jeffrey R. Lax, Mathew D. Mccubbins Jan 2006

Courts, Congress, And Public Policy, Part I: The Fda, The Courts, And The Regulation Of Tobacco, Jeffrey R. Lax, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.


The Complex Links Between Governance And Biodiversity, C. Barrett, C. Gibson, B. Hoffman, Mathew D. Mccubbins Jan 2006

The Complex Links Between Governance And Biodiversity, C. Barrett, C. Gibson, B. Hoffman, Mathew D. Mccubbins

Faculty Scholarship

We argue that two problems weaken the claims of those who link corruption and the exploitation of natural resources. The first is conceptual. Studies that use national level indicators of corruption fail to note that corruption comes in many forms, at multiple levels, and may or may not affect resource use. Without a clear causal model of the mechanism by which corruption affects resources, one should treat with caution any estimated relationship between corruption and the state of natural resources. The second problem is methodological: Simple models linking corruption measures and natural resource use typically do not account for other …


Contract As Statute, Mitu Gulati, Stephen J. Choi Jan 2006

Contract As Statute, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

Formalists contend that courts should apply strict textual analysis in interpreting contracts between sophisticated commercial parties. Sophisticated parties have the expertise and means to record their intentions in writing, reducing the litigation and uncertainty costs surrounding incomplete contracts. Moreover, to the extent courts misinterpret contracts, sophisticated parties may simply rewrite their contracts to clarify their true intent. We argue that the formalist approach imposes large costs on even sophisticated parties in the context of boilerplate contracts. Where courts make errors in interpreting boilerplate terms, parties face large collective action problems in rewriting existing boilerplate provisions. Any single party that attempts …


Building On Custom: Land Tenure Policy And Economic Development In Ghana, Joseph Blocher Jan 2006

Building On Custom: Land Tenure Policy And Economic Development In Ghana, Joseph Blocher

Faculty Scholarship

This Note addresses the intersection of customary and statutory land law in the land tenure policy of Ghana. It argues that improving the current land tenure policy demands integration of customary land law and customary authorities into the statutory system. After describing why and how customary property practices are central to the economic viability of any property system, the Note gives a brief overview of Ghana’s customary and statutory land law. The Note concludes with specific policy suggestions about how Ghana could better draw on the strength of its customary land sector.


‘No Net Loss’ - Instrument Choice In Wetlands Protection, James Salzman, J.B. Ruhl Jan 2006

‘No Net Loss’ - Instrument Choice In Wetlands Protection, James Salzman, J.B. Ruhl

Faculty Scholarship

While not a high priority issue for most people, the public has long recognized the general importance of wetlands. Since President George H.W. Bush's campaign in 1988, successive administration have pledged to ensure there would be "no net loss" of wetlands. Despite these continuous presidential pledges to protect wetlands, in recent decades, as more and more people have moved to coastal and waterside properties, the economic benefits from developing wetlands (and political pressures on obstacles to development) have significantly increased. Seeking to mediate the conflict between no net loss of wetlands and development pressures, the U.S. Environmental Protection Agency (EPA) …


Two Economists, Three Opinions? Economic Models For Private International Law - Cross Border Torts As Example, Ralf Michaels Jan 2006

Two Economists, Three Opinions? Economic Models For Private International Law - Cross Border Torts As Example, Ralf Michaels

Faculty Scholarship

Many agree that private international law does a poor job of leading to good and predictable results. Can law and economics bring more scientific, objective foundations to the discipline? Economics, one may hope, can bring the conclusiveness to the field that doctrine could not. But even a fleeting review of existing studies reveals a discrepancy of views or economic approaches that mirrors the discrepancy in the traditional private international law doctrine. This article sets out to test whether different models lead to different outcomes. It makes arguments in three economic models - a private law model, an international law model, …


Tahoe’S Requiem: The Death Of The Scalian View Of Property And Justice, Laura S. Underkuffler Jan 2006

Tahoe’S Requiem: The Death Of The Scalian View Of Property And Justice, Laura S. Underkuffler

Faculty Scholarship

In this article, I argue that from 1992 (when the Lucas case was decided) and for almost ten years thereafter, what I call the "Scalian view" of property and justice dominated Supreme Court jurisprudence. Under this vision, property provides a concrete, objectively knowable, and immutable legal barrier which marks the line between protected individual interests and the exercise of collective power. If government transgresses this line, the individual is almost always deemed to have been wronged. And compensation is required, as a matter of "justice," under the Takings Clause. I argue that with the Court's decisions in Palazzolo and Tahoe …


An Excuse-Centered Approach To Transitional Justice, David Gray Jan 2006

An Excuse-Centered Approach To Transitional Justice, David Gray

Faculty Scholarship

"Transitional justice" asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those "most responsible," amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …


“Inextricably Intertwined” Explicable At Last?: Rooker-Feldman Analysis After The Supreme Court’S Exxon Mobil Decision, Thomas D. Rowe Jr., Edward L. Baskauskas Jan 2006

“Inextricably Intertwined” Explicable At Last?: Rooker-Feldman Analysis After The Supreme Court’S Exxon Mobil Decision, Thomas D. Rowe Jr., Edward L. Baskauskas

Faculty Scholarship

The Supreme Court's March 2005 decision in 'Exxon Mobil Corp. v. Saudi Basic Industries Corp.' substantially limited the "Rooker-Feldman" doctrine, under which lower federal courts largely lack jurisdiction to engage in what amounts to de facto review of state-court decisions. Exxon Mobil's holding is quite narrow--entry of a final state-court judgment does not destroy federal-court jurisdiction already acquired over parallel litigation. But the Court's articulation of when Rooker-Feldman applies, and its approach in deciding the case, have significant implications for several aspects of Rooker-Feldman jurisprudence. Chief among our claims is that although the Court did not expressly repudiate or limit …