Digital Commons Network^™

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …

Blaming Youth, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

In March of 2001, a fourteen-year-old Florida boy named Lionel Tate was sentenced to life in prison without parole for killing six-year-old Tiffany Eunick during a wrestling match that took place when Lionel was twelve years old. Lionel was convicted of first degree murder on the ground that the killing was the result of aggravated child abuse, a crime that contemplates injury of a child by an adult caretaker. His conviction and sentence have prompted much debate and discussion – about his case and, more generally, about the criminal punishment of young offenders. Although the verdict and Lionel's sentence received …

Thinking About Eden: A Tribute To Herbert Morris, George P. Fletcher

Faculty Scholarship

This essay is an exercise in interpreting a revered, but neglected, text. I take as my object of study the story of Adam and Eve in Eden. My interest in these passages derives in large part from conversations with my mentor, Herb Morris, who taught me to appreciate the beauties and mysteries of this rich tale. For both us, the problem is explicating the deeper meaning of the story. Perhaps I put more emphasis on the original text than Morris does, but we share a common objective of understanding what the story can teach us about the human condition.

Thus, …

About Morality And The Nature Of Law, Joseph Raz

Faculty Scholarship

In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.

Privatization As Delegation, Gillian E. Metzger

Faculty Scholarship

Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of …

From Violent Crime To Terrorism: The Changing Basis Of The Federal, State And Local Law Enforcement Dynamic, Daniel C. Richman

Faculty Scholarship

Two lines of questions dominate discussions about how the nation ought to respond at home to the new (or rather newly perceived) terrorist threat: How do we ensure that information about potential terrorist activities is effectively gathered, shared, and used? And how do we ensure that the Government neither abuses the investigative authority we give it, nor demands more authority than it needs? Each line can profitably be pursued in its own terms. Yet to keep the conversations separate is to miss seeing how the very process of creating an effective domestic intelligence network may introduce a salutary level of …

The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

I am pleased to write in honor of Bill Jones by reflecting here on the study of Chinese law, which has occupied us both since the early 1960s and has since grown far beyond its narrow scope at that time. In the pages that follow, I first survey the development and current state of the field by reviewing American scholarship on some major areas of Chinese law from those early days up to the present. I am also pleased to use this review as a vehicle for noting, in particular, some of Bill's contributions to our inquiries. Some related activities …

Optimal Regulatory Areas For Securities Disclosure, Merritt B. Fox

Faculty Scholarship

The corporate governance scandals of 2003 have brought renewed focus on mandatory disclosure. One of the most fundamental questions relating to this kind of regulation is the choice of regulatory area. The United States initially faced this question in the 1930s when, after intense debate, it decided to move from an exclusively state-based system to one primarily relying on federal regulation. It is a hot issue today as well. The countries of Europe, for example, are currently deciding the extent to which the European Community, rather than its member states, should determine securities disclosure in Europe. Canada is deciding whether …

Assessing Theories Of Global Governance: A Case Study Of International Antitrust Regulation, Anu Bradford

Faculty Scholarship

An effective, legitimate model of global governance must strike a delicate balance between national sovereignty and international cooperation. As such, governance on an international level is a constantly evolving discourse among multiple actors whose respective roles and influence vary across time and policy realms. The participation of multiple actors in global governance is widely recognized, but there is considerable disagreement as to the appropriate distribution of power among these participants and the optimal pattern for their interaction. We may never be able to construct an ideal global governance model. But the attempt to create such a model by examining the …

Network Neutrality, Broadband Discrimination, Tim Wu

Faculty Scholarship

Communications regulators over the next decade will spend increasing time on conflicts between the private interests of broadband providers and the public's interest in a competitive innovation environment centered on the Internet. As the policy questions this conflict raises are basic to communications policy, they are likely to reappear in many different forms. So far, the first major appearance has come in the "open access" (or "multiple access") debate, over the desirability of allowing vertical integration between Internet Service Providers and cable operators. Proponents of open access see it as a structural remedy to guard against an erosion of the …

Private Information, Self-Serving Biases, And Optimal Settlement Mechanisms: Theory And Evidence, Seth A. Seabury, Eric L. Talley

Faculty Scholarship

The law and economics literature on suit and settlement has tended to focus on two alternative conceptual models. On the one hand, the "optimism" model of pre-trial negotiation attempts to explain settlement failure as an artifact of unfounded optimism by one or both parties. The idea that bargaining agents can adopt such non-rational biases receives support from experimental evidence. On the other hand, the "private information" model of pre-trial bargaining portrays settlement failures as an artifact of strategic information rent extraction. It finds support in some experimental evidence as well. This paper presents (for the first time) a mechanism-design approach …

Controlling Controlling Shareholders, Ronald J. Gilson, Jeffrey N. Gordon

Faculty Scholarship

The rules governing controlling shareholders sit at the intersection of the two facets of the agency problem at the core of public corporations law. The first is the familiar principal-agency problem that arises from the separation of ownership and control. With only this facet in mind, a large shareholder may better police management than the standard panoply of market-oriented techniques. The second is the agency problem that arises between controlling and non-controlling shareholders, which produces the potential for private benefits of control. There is, however, a point of tangency between these facets. Because there are costs associated with holding a …

The Mechanisms Of Market Efficiency Twenty Years Later: The Hindsight Bias, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Twenty years ago we published a paper, "The Mechanisms of Market Efficiency," that sought to describe the institutional underpinnings of price formation in the securities market. Since that time, financial economics has moved forward on many fronts. The sub-discipline of behavioral finance has struggled to bring yet more descriptive realism to the study of financial markets. Two important questions are (1) how much has this new discipline changed our understanding of the efficiency and nature of the institutional mechanisms that set price in financial markets; and (2) how far does this discipline carry novel implications for the regulation of financial …

Bi-Polar And Polycentric Approaches To Human Rights And The Environment, Michael Burger

Sabin Center for Climate Change Law

Within the well-established human rights system, there exist at least three ways to promote environmental ends (each of which is discussed further in Section III below): (1) mobilizing existing rights to achieve environmental ends; (2) reinterpreting existing rights to include environmental concerns; and (3) creating new rights, such as the right to a clean environment. To justify engaging in any one of these processes, an advocate must recognize both their moral legitimacy and legal utility. As one author has argued, "the justification for rights is to be found in the way in which they enable us to address a key …

Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon

Faculty Scholarship

Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.

The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the bar's …

Reforming Campaign Finance Reform: A Review Of Voting With Dollars, Richard Briffault

Faculty Scholarship

On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA") into law. The culmination of a six-year legislative and political struggle, BCRA works the most comprehensive change in federal campaign finance law in nearly three decades. BCRA addresses a broad range of issues, including soft money, issue-advocacy advertising, fundraising on federal property, campaign activities of foreign nationals, and penalties for violation of campaign finance laws. Enacted in the face of intense political opposition, BCRA, if it stands up in court, is a significant reform achievement.

Or is it? BCRA closely follows the main …

From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt

Faculty Scholarship

Criminal law in the United States experienced radical change during the course of the twentieth century. The dawn of the century ushered in an era of individualization of punishment. Drawing on the new science of positive criminology, legal scholars called for diagnosis of the causes of delinquency and for imposition of individualized courses of remedial treatment specifically adapted to these diagnoses. States gradually developed indeterminate sentencing schemes that gave corrections administrators and parole boards wide discretion over treatment and release decisions, and by 1970 every state in the country and the federal government had adopted a system of indeterminate sentencing. …

Equality And The Forms Of Justice, Susan Sturm

Faculty Scholarship

Justice and equality are simultaneously noble and messy aspirations for law. They inspire and demand collective striving toward principle, through the unflinching comparison of the "is" and the "ought." Yet, law operates in the world of the practical, tethered to the realities of dispute processing and implementation. The work of many great legal scholars and activists occupies this unstable space between principle and practice. Owen Fiss is one such scholar, attempting to straddle the world of the here-and-now and the imagined and then deliberately constructed future, the contours of which have been established during the founding moments of our constitutional …

Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be. These gaps are unsurprising given the traditional definition of contract as embracing all promises that the law will enforce. Even a theory of contract law that focuses only on the enforcement of bargains must still consider the entire continuum from standard form contracts between firms and consumers to commercial contracts among businesses. No descriptive theory has yet explained a law of contract that comprehends such a broad domain. Normative theories that are grounded in a single …

The Proposed New Technology Transfer Block Exemption: Is Europe Really Better Off Than With The Current Regulation?, Maurits Dolmans, Anu Bradford

Faculty Scholarship

This article discusses the legal and economic foundations, as well as the practical implications of the Commission's proposal for a new technology transfer block exemption regulation ("TTBER'') and associated Guidelines.

The article concludes that the new TTBER brings desirable flexibility to the assessment of the competitive effects of technology licensing agreements by abolishing the current division of the clauses into four categories of exempted, white, black and grey clauses. The Commission's proposal is also praised for extending the scope of the Regulation to software copyright licences and for exempting some efficiency-enhancing restrictions that currently fall outside of the TTBER. The …

Rethinking The Death Penalty: Can We Define Who Deserves Death – A Symposium Held At The Association Of The Bar Of The City Of New York May 22, 2002, Martin J. Leahy, Norman L. Greene, Robert Blecker, Jeffrey L. Kirchmeier, William M. Erlbaum, David Von Drehle, Jeffrey A. Fagan

Faculty Scholarship

In light of the defects of the capital punishment system and recent calls for a moratorium on executions, many are calling for serious reform of the system. Even some who would not eliminate the death penalty entirely propose reforms that they contend would result in fewer executions and would limit the death penalty to a category that they call the "worst of the worst." This program asks the question: Is there a category of defendants who are the "worst of the worst?" Can a crime be so heinous that a defendant can be said to "deserve" to be executed? Would …

Governance Failures Of The Enron Board And The New Information Order Of Sarbanes-Oxley, Jeffrey N. Gordon

Faculty Scholarship

Analysis of the corporate governance crisis that manifested itself in the United States at the turn of the millennium requires separating its various strands. The Enron Corporation ("Enron") debacle and the dot corn bubble and collapse, for example, share some common elements but in other ways they are quite different. In both cases investors became aggressively enamored of an unsustainable business model. In the dot com case it was the belief that an innovator in a rapidly growing market could attain powerful first mover advantages that would produce an eventual cascade of profits, so that a current and increasing stream …

The Efficiency Of Controlling Corporate Self-Dealing: Theory Meets Reality, Zohar Goshen

Faculty Scholarship

Corporate self-dealing may be controlled either by legal rules or by the unconstrained forces of the market. The regulatory options include an absolute prohibition on self-dealing, a prohibition on voting with conflicting interests (the "majority of the minority" requirement), and an imposition of fairness duties (the 'fairness test"). Using an economic analysis, this Article presents a unique theoretical framework for evaluating the relative efficiency of the attempts to control self-dealing adopted by five countries: The United States (Delaware in particular), the United Kingdom, Canada, Germany, and Italy.

The Article's analysis of the self-dealing problem is based on the novel theory …

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

Reflections On The Life And Work Of Justice Byron R. White, Lance Liebman

Faculty Scholarship

I am honored to be at this distinguished law school. Lee Irish and I were law clerks for Justice White the same year, at a time when a Justice only had two law clerks. Those were the days when the people older than us, who had been clerks when there was only one clerk in each office, would say, "You don't have the same experience, because the Justice is dealing with two of you so it is not as intense." Of course, now with as many as four clerks in each office, it is different still.

Lee and I had …

Professional Identity: Comment On Simon, Daniel C. Richman

Faculty Scholarship

Lord Brougham – the icon of zealous advocacy, who saw it as his duty to “save [his royal] client by all means and expedients and at all hazards and costs to other persons and, among them, to himself” – would not last long in a Cuban criminal court today. The question is, how comfortable would he be in a drug treatment court? Could he do his job? How well would he do it? Would he want to? And should we care if he couldn't and wouldn't?

These are all questions raised by William Simon's trenchant exploration of the challenges that …

Prosecutors And Their Agents, Agents And Their Prosecutors, Daniel C. Richman

Faculty Scholarship

This Article seeks to describe the dynamics of interaction between federal prosecutors and federal enforcement agents, and to suggest how these dynamics affect the exercise of enforcement discretion. After considering the virtues and pitfalls of both hierarchical and coordinate organizational modes, the Article offers a normative model that views prosecutors and agents as members of a "working group," with each side monitoring the other. It concludes by exploring how this model can be furthered or frustrated with various procedural and structural changes.

What Caused Enron? A Capsule Social And Economic History Of The 1990s, John C. Coffee Jr.

Faculty Scholarship

The sudden explosion of corporate accounting scandals and related financial irregularities that burst over the financial markets between late 2001 and the first half of 2002 e.g., Enron, WorldCom, Tyco, Adelphia, and others-raises an obvious question: why now? What explains the sudden concentration of financial scandals at this moment in time? Much commentary has rounded up the usual suspects and blamed the scandals on a decline in business morality, “infectious greed,” and similar subjective trends that cannot be reliably measured.

Gender, Work, And The Nafta Labor Side Agreement, Kate Andrias

Faculty Scholarship

It has been nearly ten years since the public debate over the North American Free Trade Agreement ("NAFTA") and the advent of trade liberalization with America's neighbors to the north and south. In the years since NAFTA's signing in 1993, economic globalization has fundamentally changed our conception of the nation-state, citizenship, trade, and work. Economic life in the United States now involves massive cross-border capital and labor flows, and integrated cross-border production chains, particularly with our trading partners in NAFTA. We have seen greater trade liberalization throughout the world, the ascendance of transnational organizations like the World Trade Organization, recurrent …

Consensual Sex And The Limits Of Harassment Law, Carol Sanger

Faculty Scholarship

This chapter discusses an enormous achievement of the campaign against the harassment of working women, which is the establishment of a set of facts about sex at work that had previously been denied, mocked, and misunderstood. It is now understood that sex can be unwelcome, that unwelcome overtures are neither harmless nor fun, and that consent to sex demanded on the job does not shift the behavior from the category of unwanted sex to the category of the welcome. On the other hand, one of the most ferocious complaints against the establishment of sexual harassment as a legal wrong is …