Law Commons^™

The Roles Of The State And The Market In Establishing Property Rights, Andrzej Rapaczynski

Faculty Scholarship

Using the experiences of Eastern Europe as an example, this article argues that, contrary to the economists' assumption that property rights are a precondition of a market economy, market institutions are often a prerequisite for a viable private property regime. Progress in the development of complex property rights in Eastern Europe, thus, cannot be expected to come primarily from a perfection of the legal system. Instead, it is more likely to arise as a market response to the demand for property rights. Indeed, legal entitlements can only be expected to become effective against a background of self-enforcing market mechanisms.

Three Models Of Affirmative Action Beneficiaries, Thomas W. Merrill

Faculty Scholarship

What has caused the affirmative action debate to become so acrimonious? Perhaps some insight may be gained By considering three competing models of affirmative action beneficiaries that underlie this debate: (1) the outsider group model; (2) the interest group model; and (3) what I will call the adversity group model.

Ballot Propositions And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

For more than two decades, law and policy in the area of campaign finance reform have been framed by the conflict between the norms of promoting political equality and protecting political participation. Viewing campaign finance as a basic component of political activity, the Supreme Court has generally given political participation priority over equality and has invalidated reforms that would limit spending in order to promote equality. The Court, however, has sustained some restrictions on campaign finance activities of candidates, political parties, and individuals and groups who work with these political professionals. In effect, concern about the capacity of private donations …

The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier

Faculty Scholarship

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American.

Those of …

Administrative Law: The Hidden Comparative Law Course, Peter L. Strauss

Faculty Scholarship

What does today's Administrative Law course give your students that you might not be aware of and might be helped by knowing? That, as I understand it, is the question I am to answer. But we may also want to think about the overall shape of the curriculum: it may be useful to ask about fundamental issues our students may not be aware of, that may not be dealt with elsewhere in the law school curriculum. I'll spend most of my time on the question I've been asked to address, but I hope you will accept a few sentences on …

The First Shall Be Last: A Contextual Argument For Abandoning Temporal Rules Of Lien Priority, Ronald J. Mann

Faculty Scholarship

Within the academic circles of commercial law, secured credit is about as hot as a topic can get. For a good fifteen years, leading scholars have argued contentiously about the most fundamental questions concerning secured credit: not just about the policies that might justify the law's protection of secured creditors, but more fundamentally about the seemingly obvious question of why businesses and their creditors choose to grant collateral to secure their payment obligations. The extensive and inconclusive debate in the academic literature has not, however, undermined the confidence in secured credit exhibited by the law-reform institutions of the profession. Rather, …

Positivism And The Separation Of Law And Economics, Avery W. Katz

Faculty Scholarship

The modem field of law and economics – that is, the application of economic analysis to legal subjects other than trade and business regulation – is now over thirty years old, but it remains controversial in the legal academy and, to a lesser extent, in the profession at large. Since its beginnings in the early 1960s, the economic approach has provoked substantial opposition and antagonism. The sources of this resistance, however, are a matter of dispute. Many economists and economically influenced lawyers attribute it to more traditional lawyers' reluctance to learn a new and unfamiliar set of concepts and techniques. …

We The People[S], Original Understanding, And Constitutional Amendment, Henry Paul Monaghan

Faculty Scholarship

Recent legal and political activity and renewed academic discussion have focused considerable attention on the nature of the federal system that the founders created some two hundred years ago. In two important decisions in the 1994 Term, the Supreme Court addressed this issue. No fewer than fifteen states have recently passed resolutions reasserting the importance of the Tenth Amendment – the constitutional affirmation of the limits on national authority. Additionally, legal academics have advanced arguments intended to alter settled understandings about the constitutional framework established in 1789. This widespread reexamination of the nature and limitations of our federal system has …

The Future Of The Private Securities Litigation Reform Act: Or, Why The Fat Lady Has Not Yet Sung, John C. Coffee Jr.

Faculty Scholarship

Much commentary about securities litigation shares the implicit premise that the Private Securities Litigation Reform Act of 1995 (Reform Act) is, for better or worse, a fait accompli – that is, legislation whose meaning is fixed and whose impact, while still debatable, is not contingent on future events. This Article sees it differently: the Reform Act is more like wet clay that has been shaped into an approximation of a human form by an apprentice craftsmen and has now been turned over to the master sculptor for the details that will spell the difference between high art and merely competent …

Regulatory Federalism: A Reprise And Introduction, George A. Bermann

Faculty Scholarship

This colloquium, like its predecessor, proceeds on the basis of a series of assumptions. First, it assumes that the federalism dimension of the regulatory state is an important one Gust as is the regulatory dimension of the federal state). In introducing our first colloquium, I suggested that, although determining the content of public policy is critical in a democratic society, also critical is determining the level of government at which the choice of policy is made. Ingolf Pernice remarked then that a federal system is "any legal entity [which is] comprised of states for the purpose of pursuing certain common …

Barbara Jordan: Constitutional Conscience, Philip C. Bobbitt

Faculty Scholarship

Many of us learned for the first time in the press accounts following Barbara Jordan's death that she carried with her a small pocket copy of the U.S. Constitution. From some apparently early point, and then throughout her life, this small paper pamphlet was always with her. What was unreported was the fact that within this copy of the Constitution, there was folded a slip of paper on which was written a quotation from Albert Einstein. I do not believe this quotation is written in Barbara Jordan's hand; but it has clearly lain within her copy of the Constitution for …

Comment On Moliterno, Legal Education, Experiential Education, And Professional Responsibility, Lance Liebman

Faculty Scholarship

In attempting to predict and prescribe the future, my vision of the recent history of legal education differs from Professor Moliterno's in certain relevant ways.

I graduated from Law School in 1967. I learned largely through doctrinal courses that delivered steady training in thinking like a lawyer and information about areas of law. These courses exposed me and my classmates to legal lingo and to the standard types of legal arguments. We learned, largely by hearing the teacher and our fellow students, to make verbal moves and to see the strengths and limitations of others' argumentation skills and techniques. We …

Preferential Trade Agreements: The Wrong Road, Jagdish N. Bhagwati

Faculty Scholarship

The nature of FTAs is to offer free trade only to members, not to non-members. Thus, FTAs are two-faced: they ensure free trade for members and (relative) protection against non-members. First-year students of international economics would be asked to shift to a different field if they could not grasp this elementary and elemental distinction, and yet today's politicians imagine themselves to be statesmen endorsing free trade when they embrace these inherently discriminatory PTAs.

As PTAs proliferate, the main problem that arises is the accompanying proliferation of discrimination in market access and a whole maze of trade duties and barriers that …

The Legal Environment Of International Finance: Thinking About Fundamentals, Merritt B. Fox

Faculty Scholarship

The huge increase in cross border capital flows over the last two decades has profoundly important implications for society in general and the law in particular. These flows give rise to a set of legal problems that are sufficiently distinct and coherent to constitute a legal field of their own. Confirming this observation is the development of a specialized legal practice whose members spend the bulk of their time working on such transactions. Nevertheless, a law school course in international finance is a rarity, even at the schools that train most of the students who ultimately join this practice.

The …

Domination In The Theory Of Justification And Excuse, George P. Fletcher

Faculty Scholarship

The major currents driving legal theory have largely bypassed the field of criminal law. Neither the economists nor the advocates of critical legal studies ("crits") have had much to say about the theory of criminal responsibility or the proper mode of trying suspects. The economists have fallen flat in applying their rationalist models to the problems of punishing wrongdoers. The "crits" have had little to add-beyond Mark Kelman's one original and provocative article.

Of all the schools on the march in the law schools today, the feminists have had the most to say about the failings of the criminal law. …

Risk Assessment Perspectives, Peter L. Strauss

Faculty Scholarship

I have a slightly different subtitle for our session today, which I hope our panelists may consider in addressing the many challenges before them: Cost-Benefit Analysis and Risk Assessment under Diminished Resources. Allan Morrison introduced the resource problem at the end of yesterday's session. It is an important element of the problems we face.

I think another element of those problems is finding a reasoned way of addressing these issues. The contrast between reasoned decisionmaking and political football was also nicely in evidence yesterday, perhaps especially strongly for those of us who have been responsible for putting together these presentations. …

Transfers Of Control And The Quest For Efficiency: Can Delaware Law Encourage Efficient Transactions While Chilling Inefficient Ones?, John C. Coffee Jr.

Faculty Scholarship

At first glance, few corporate law principles seem to be better established than the widely prevailing rule that a controlling shareholder may receive a control premium for its shares. From a comparative law perspective, however, this consensus may seem surprising, because the United States stands virtually alone in failing to accord minority shareholders any presumptive right to share in a control premium. Yet, from an economic perspective, the permissive U.S. rule is not surprising because economists generally agree that economic efficiency is promoted by privately negotiated control transfers at premiums not offered to minority shareholders.

The puzzling fact that this …

Local Government And The New York State Constitution, Richard Briffault

Faculty Scholarship

On November 4, 1997, the question "Shall there be a convention to revise the [state] constitution and amend the same?" will be submitted to the New York state electorate pursuant to the provision in the state constitution requiring that every twenty years the voters be given the opportunity to call for a constitutional convention. A longstanding constitutional concern in New York is local government and the relations between local governments and the State. With an eye to the upcoming vote on whether to hold a constitutional convention, this paper examines the place of local government and state-local relations in the …

Domination In Wrongdoing, George P. Fletcher

Faculty Scholarship

Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs. Both crimes and torts claim victims, however, the victims' responses vary according to context. In criminal cases, the victim responds by hoping that the government will apprehend and successfully prosecute the offender. In tort disputes, the victim responds by demanding compensation.

It is unclear, however, what constitutes wrongdoing. Defining wrongdoing as the violation of rights is unhelpful, for that definition only raises other questions: Who has rights and what is their content? Therefore, to understand the nature of wrongdoing, we should seek a substantive theory …

Changing Times: The Apa At Fifty, Peter L. Strauss

Faculty Scholarship

In early October 1995, Walter Gellhorn helped to open a National Archives display commemorating the fiftieth birthday of the Administrative Procedure Act ("APA"). That Act had begun to take shape just prior to World War II, when Gellhorn had directed the Attorney General's Committee on Administrative Procedure. Created in response to a political spasm of legislative activity that produced a "reform" bill President Roosevelt vetoed, Gellhorn's committee engaged in a thorough and careful survey of administrative agencies and their procedures. In the end, the committee produced twenty-seven monographs describing the variety of decision-making processes employed by the agencies and a …

Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffery Fagan, Martin Guggenheim

Faculty Scholarship

Since 1970, legislatures have increasingly relied on preventive detention – detention before trial ordered solely to prevent an accused from committing crime during the pretrial period – as an instrument of social control. Prior to this period, detention before trial was usually ordered only to assure an accused's presence at trial or to ensure the integrity of the trial process by preventing an accused from tampering with witnesses. Today, the majority of states and the federal system have changed their laws to allow judges to detain arrestees who pose a risk to society if released during the pretrial period. Half …

From Expertise To Politics: The Transformation Of American Rulemaking, Peter L. Strauss

Faculty Scholarship

In this speech to be given on November 15, 1996, as the American contribution to the week-long conference on administrative law sponsored by the Fundaci6n Estudios de Derecho Administrativo in Caracas, Venezuela, Professor Peter L. Strauss addresses the history and developing political character of rulemaking in federal law over the fifty years since enactment of the Administrative Procedure Act. As a framework, Professor Strauss sets forth a hierarchy of institutional rulemaking, from constitution through informal advising. He then develops his discussion of rulemaking by tracing the federal process of rulemaking through time, beginning with the enactment of the Administrative Procedure …

What Does A White Woman Look Like? Racing And Erasing In Law, Katherine M. Franke

Faculty Scholarship

In significant ways, legal texts produce a narrative of national identity. They weave stories about who we are, what we are committed to, and what we expect of one another, individually and collectively. The concept of justiciability can be understood as a set of rules determining what stories courts are allowed to tell about who we are and who we can be. In this sense, Ronald Dworkin's account of judging as writing ongoing chapters in a chain novel provides a compelling conception of law as both describing where we have been and directing where we are going. If the salience …

Bargaining About Future Jeopardy, Daniel Richman

Faculty Scholarship

The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants – those who plead guilty instead of standing trial – the Double Jeopardy Clause simply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring …

Cooperating Defendants: The Costs And Benefits Of Purchasing Information From Scoundrels, Daniel Richman

Faculty Scholarship

Only the most unreflective prosecutor can avoid feeling ambivalent about cooperation. Without the assistance of defendants willing to trade testimony for the expectation of sentencing discounts, many cases worth prosecuting could not be made. But if a prosecutor maintains any distance from these defendants – as he must – he is bound to be troubled by the magnitude of the discounts that the federal system (like other systems) gives to cooperators, many of whom rank as some of the most odious people he has ever met.

The idea of purchasing testimony through sentencing discounts has a long history, of course, …

The Legal Structure Of The Chinese Socialist Market Enterprise, William H. Simon

Faculty Scholarship

China's phenomenal economic growth since 1978 has been accompanied by a cascade of institutional innovation and experimentation. In at least this one sense a hundred flowers are blooming in the People's Republic. The range of institutional forms and their defiance of the conventions of economic organization in both capitalist and socialist societies are impressive.

The Chinese leadership calls the new order by the unfamiliar (and to some, oxymoronic) term "socialist market" economy. Its "market" dimensions include deregulation of most prices, decentralization of decision-making to the household in agriculture and to the enterprise in industry, incentive schemes for peasants, managers, and …

Acknowledgments, George A. Bermann

Faculty Scholarship

On April 11-12, 1996, members of the law faculties at Johann Wolfgang Goethe-Universität and Columbia University met in New York for the Second Frankfurt-Columbia Symposium on Comparative Law, once again dealing with issues of regulatory federalism and harmonization of laws in comparative perspective. The first symposium took place in Frankfurt a year earlier, and it was our great pleasure to host our German colleagues and return in some small measure the hospitality that they had shown us the previous year. I would particularly like to thank my good friend and colleague Prof. Dr. Ingolf Pernice (now of the law faculty …

The Theory Of Preferential Trade Agreements: Historical Evolution And Current Trends, Jagdish N. Bhagwati, Arvind Panagariya

Faculty Scholarship

The theory of preferential trade agreements (Pf A's), or what might be described in policy terms as the General Agreement on Tariffs and Trade (GATT) Article XXIV sanctioned freetrade areas (FTA's) and Customs Unions (CU's), has undergone two phases of evolution, in two very different modes, largely reflecting the contrasting policy concerns of the time. In this paper, we trace this evolution, offering both a historical context and an intellectual coherence to diverse analytical approaches.

Public Finance In The American Federal System: Basic Patterns And Current Issues, Richard Briffault

Faculty Scholarship

Public finance issues with significant consequences for American federalism have been at the top of the political agenda for the last several years. Indeed, much of the current debate about American federalism has been explicitly about questions of public finance: Which level of government should pay for which programs? What is to be the relationship between financial responsibility and policy-making authority? Should there be some overall limitation on government outlays and receipts?

Thus, one of the first actions of the 104th Congress was passage of a measure, swiftly signed into law by the President, to curb the ability of the …

U. S. Federalism And Intellectual Property, Jane C. Ginsburg

Faculty Scholarship

The federal structure of the U.S. government presents interesting questions for intellectual property. Which government, national or state, exercises regulatory authority? Or do both governments play a significant role? Questions of this order cannot be addressed unless one first analyzes what the term "intellectual property" comprehends. Intellectual property includes well-recognized regimes of exclusive rights in inventions (patents), literary, artistic and musical creations (copyrights), and trademarks. But it also covers more elusive, and evolving, interests, such as exploitation of one's personal name and image (right of publicity), trade secrets, and a generalized concern with prevention of acts amounting to unlicensed appropriation …