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Articles 1 - 30 of 36
Full-Text Articles in Law
Sharing The Risks Of Bankruptcy: Timbers, Ahlers, And Beyond, Robert E. Scott
Sharing The Risks Of Bankruptcy: Timbers, Ahlers, And Beyond, Robert E. Scott
Faculty Scholarship
Bankruptcy policy appears to be in disarray. Recent decisions by the United States Supreme Court have only served to reinforce the uncertainties that mar the bankruptcy process. In United Savings Association of Texas v. Timbers of Inwood Forest Associates, Ltd., the Court held that an undersecured creditor was not entitled to interest on its collateral as compensation for the opportunity costs of delay caused by the bankruptcy process. Timbers thus supports the argument that secured creditors should be forced to share the burdens of bankruptcy with other claimants. Conversely, in Norwest Bank Worthington v. Ahlers, the Court held …
The Single European Act: A Constitution For The Community?, George A. Bermann
The Single European Act: A Constitution For The Community?, George A. Bermann
Faculty Scholarship
If proof were needed that the European Economic Community is still the product of a careful tempering of integrationist impulses with preoccupations of national sovereignty, the recently ratified Single European Act (Single Act or Act) amply supplies it. Although the Single Act represents the most comprehensive revision to date of the Treaty of Rome (EEC Treaty), which established the European Economic Community (European Community or Community), it also reflects the continuing vitality of the view that functional change within the Community takes priority in time over structural and institutional reform. Rather than place European integration on a new set of …
Evaluating Child Care Legislation: Program Structures And Political Consequences, Lance Liebman
Evaluating Child Care Legislation: Program Structures And Political Consequences, Lance Liebman
Faculty Scholarship
The American political system is not good at choosing among worthy goals and then adopting programs well designed to achieve the desired purposes. Scholars and activists continue to debate the success and failure of the last quarter century of efforts to reduce inequality and achieve other social reforms. But we have no well developed methodology for evaluating proposed programs and attempting to predict their likely consequences.
This Article asks what we know about choosing legal structures for programmatic efforts that seek social change. In particular, it asks whether we can predict relationships between different ways of pursuing public ends and …
On The Nature Of Bankruptcy: An Essay Of Bankruptcy Sharing And The Creditor's Bargain, Thomas H. Jackson, Robert E. Scott
On The Nature Of Bankruptcy: An Essay Of Bankruptcy Sharing And The Creditor's Bargain, Thomas H. Jackson, Robert E. Scott
Faculty Scholarship
Finance theorists have long recognized that bankruptcy is a key component in any general theory of the capital structure of business entities. Legal theorists have been similarly sensitive to the substantial allocational and distributional effects of the bankruptcy law. Nevertheless, until recently, underlying justifications for the bankruptcy process have not been widely studied. Bankruptcy scholars have been content to recite, without critical analysis, the two normative objectives of bankruptcy: rehabilitation of overburdened debtors and equality of treatment for creditors and other claimants.
The developing academic interest in legal theory has spurred a corresponding interest in expanding the theoretical foundations of …
Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss
Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss
Faculty Scholarship
That is absolutely right. I am sufficiently confused by the facts that are already on the table – two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800. Something is going on there. The other is just a square conflict that our moderator is much better …
Unstable Coalitions: Corporate Governance As A Multi-Player Game, John C. Coffee Jr.
Unstable Coalitions: Corporate Governance As A Multi-Player Game, John C. Coffee Jr.
Faculty Scholarship
This is an article written in honor of Professor Donald Schwartz, a leading figure in academic corporate law for over two decades, but also a man nearly unique in his willingness to move beyond corporate law to the general study of corporate behavior. In this light, this article will not explore the latest wrinkle in the law – the most recent case, latest SEC ruling, or newest takeover defense tactic – but will instead ask if there are new ways in which we should try to talk about corporate law and corporate behavior. These were questions that Don Schwartz repeatedly …
Independent Agencies – Independent From Whom?, Sally Katzen, Edward Markey, James Miller, Joseph Grundfest, R. Gaull Silberman, Peter L. Strauss
Independent Agencies – Independent From Whom?, Sally Katzen, Edward Markey, James Miller, Joseph Grundfest, R. Gaull Silberman, Peter L. Strauss
Faculty Scholarship
No abstract provided.
Some Comments On Professor Neuborne's Paper, Henry Paul Monaghan
Some Comments On Professor Neuborne's Paper, Henry Paul Monaghan
Faculty Scholarship
It is a pleasure to have the opportunity to comment upon Professor Neuborne's paper; it is a provoking effort to make sense out of important aspects of the first amendment. At the outset, I should say that there is much in the paper with which I agree. But for the purposes of this essay I will focus on points of disagreement.
Professor Neuborne's specific focus is an analysis of the Security and Exchange Commission's (SEC) regulation of speech. The final twenty-one pages of his paper are directly concerned with analysis and criticism of the existing case law on the subject. …
Coming Of Age In A Corporate Law Firm: The Economics Of Associate Career Patterns, Ronald J. Gilson, Robert H. Mnookin
Coming Of Age In A Corporate Law Firm: The Economics Of Associate Career Patterns, Ronald J. Gilson, Robert H. Mnookin
Faculty Scholarship
The traditional American corporate law firm, long an oasis of organizational stability, in recent years has been the subject of dramatic change. The manner in which firms divide profits, perhaps the most revealing aspect of law firm organization because it displays the balance the firm has selected between risk-sharing and incentives, has changed in a critical way. From a long standing reliance on seniority that emphasizes risk-sharing, profit division is shifting to a system based on the productivity of individual partners that emphasizes incentives. With what seems to be only a short time lag from the change in how profits …
Corruption, Legal Education And Change In West Africa: A Broader View Of Human Rights, Suzanne B. Goldberg
Corruption, Legal Education And Change In West Africa: A Broader View Of Human Rights, Suzanne B. Goldberg
Faculty Scholarship
"Will we ever move again?" I wondered as I sat with my knees jammed into my chin, sore from the long and bumpy ride on the wooden plank which lined the back of a "bush taxi" – the only public transport between villages in Northern Mali. The "taxi" was actually a rusty and roadworn pickup truck packed with more than two dozen men, women and children, more than I ever imagined could fit in the small, flat space between the cab and the tailgate. "Why are we stopping now?" I smiled at myself as I felt a sense of exasperation …
The Meaning Of Morality, George P. Fletcher
The Meaning Of Morality, George P. Fletcher
Faculty Scholarship
Many lawyers, both inside and outside the law schools, suffer from insecurity about our discipline. Instead of thinking of ourselves as the curators of a grand tradition in Western thought, many of us think of the law as a collection of doctrinal formulas and rules imposed on us by legislatures and the highest courts. We are always looking elsewhere to find a source of wisdom that will give the law coherence and meaning. At various times in this century we have looked to sociology, anthropology, psychoanalysis and, of course, economics in an effort to ground our ideas in firmer soil. …
Is Law Politics?, Philip Chase Bobbitt
Is Law Politics?, Philip Chase Bobbitt
Faculty Scholarship
Red, White, and Blue addresses the pervasive presence of five general theories of American constitutional law. These theories reflect particular jurisprudential ideologies governing, among other things, the legitimacy of certain arguments, the appropriateness of certain occasions for judicial intervention and the constitutional basis for judicial review. What makes this book interesting and important is that it provides an unwitting or at least unself-conscious example of the general theorizing it wishes to explain. For this reason, its descriptions of the particular family of theories that characterize American constitutional jurisprudence are distorted, while it disclaims any account of the particular set of …
Demarginalizing The Intersection Of Race And Sex: A Black Feminist Critique Of Antidiscrimination Doctrine, Feminist Theory And Antiracist Politics, Kimberlé W. Crenshaw
Demarginalizing The Intersection Of Race And Sex: A Black Feminist Critique Of Antidiscrimination Doctrine, Feminist Theory And Antiracist Politics, Kimberlé W. Crenshaw
Faculty Scholarship
One of the very few Black women's studies books is entitled All the Women Are White; All the Blacks Are Men, But Some of Us are Brave. I have chosen this title as a point of departure in my efforts to develop a Black feminist criticism because it sets forth a problematic consequence of the tendency to treat race and gender as mutually exclusive categories of experience and analysis. In this talk, I want to examine how this tendency is perpetuated by a single-axis framework that is dominant in antidiscrimination law and that is also reflected in feminist theory and …
Retirement Security And Tax Policies: A Reply, Michael J. Graetz
Retirement Security And Tax Policies: A Reply, Michael J. Graetz
Faculty Scholarship
In an Article published in the April 1987 issue of the University of Pennsylvania Law Review, I urged that the three major components of this nation's retirement income system – Social Security, and income tax preferences for both employer-sponsored pension plans and individual retirement savings – be analyzed as a comprehensive national retirement income security program. I demonstrated that such an integrated view of this tripartite retirement security system reveals serious problems both with Social Security and with the generally applauded "tax expenditure" provisions for private pensions and individual savings. Viewing the three elements as a unified retirement security arrangement …
The Future And The First Amendment, Lee C. Bollinger
The Future And The First Amendment, Lee C. Bollinger
Faculty Scholarship
It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …
A House Divided Against Itself: A Comment On "Mastery, Slavery, And Emancipation", Kendall Thomas
A House Divided Against Itself: A Comment On "Mastery, Slavery, And Emancipation", Kendall Thomas
Faculty Scholarship
Hegel argues in the preface to the Philosophy of Right that "every individual is a child of his time; so philosophy too is its own time apprehended in thoughts." "It is just as absurd," he maintains, "to fancy [the German word is einbilden: imagine, presume] that a philosophy can transcend its contemporary world as it is to fancy that an individual can overleap his own age, jump over Rhodes." This is a hard saying. It suggests that " '[t]here is not one of our ideas or one of our reflexions which does not carry a date.' " The fact that …
Covert Operations, Lori Fisler Damrosch
Covert Operations, Lori Fisler Damrosch
Faculty Scholarship
As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action – before the intelligence oversight reforms of the l 970s – Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to "perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct," Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an …
Rethinking The Regulation Of Coercive Creditor Remedies, Robert E. Scott
Rethinking The Regulation Of Coercive Creditor Remedies, Robert E. Scott
Faculty Scholarship
The phenomenal growth of personal installment credit over the past forty years has generated inevitable pressures for regulatory reform of consumer credit markets. Much of the impetus for consumer protection has stemmed from the perceived abuses that mark the process of coercive collection upon default. Some of these abuses have been identified, quite properly, as the sort of deceptive or fraudulent practices often associated with industries experiencing rapid growth. But other creditor remedies, though troublesome to many observers, cannot be as easily characterized. For example, many critics have challenged the common practice of self-help repossession and resale of consumer goods …
The Mandatory Structure Of Corporate Law, Jeffrey N. Gordon
The Mandatory Structure Of Corporate Law, Jeffrey N. Gordon
Faculty Scholarship
It has become standard in the law and economics literature to refer to the corporation as a "nexus of contracts." On this view, the corporate entity is nothing more than a gathering point for a series of contracts, express and implied, among assorted actors: shareholders, bondholders, managers, employees, suppliers and customers, for example. This view rankles some sensibilities, because the economists' conception of a "contract" as an arrangement between two or more actors supported by reciprocal expectations and behavior is far broader than the lawyer's conception, which focuses on the existence of judicially cognizable duties and obligations. Thus the lawyer, …
Free Speech Justifications, Kent Greenawalt
Free Speech Justifications, Kent Greenawalt
Faculty Scholarship
This Article sets out what I believe are the relevant justifications for free speech, the term "free speech" being meant to cover both freedom of speech and freedom of the press. These are the justifications one might use to assess whether communications fall within a political or judicial principle of free speech and how great the protection of the communications that are covered should be. Such assessments are undertaken in a longer study that is mainly about the ways in which different uses of language affect the application of principles of freedom of speech to the criminalization of behavior. That …
Methods Of Constitutional Argument, Philip C. Bobbitt
Methods Of Constitutional Argument, Philip C. Bobbitt
Faculty Scholarship
The methods of constitutional argument1 that may be denominated, historical, textual, doctrinal, structural, prudential and ethical, have not grown according to a plan. They have grown up in the United States because of our history and traditions – the sort of people we have become and are still becoming. To that extent, they are arbitrary and contingent. They are not the same for every culture. I would be surprised if they were very different for Canada because Canadians and Americans share so much of the same legal tradition. One can, however, easily imagine cultures around the world where legal arguments …
French Copyright Law: A Comparative Overview, Jane C. Ginsburg
French Copyright Law: A Comparative Overview, Jane C. Ginsburg
Faculty Scholarship
French copyright law has attracted considerable recent attention in the United States. Debate over the nature and scope of legislation permitting U.S. entry into the Berne Union for the Protection of Literary and Artistic Works spurred some of this interest: because France was a founding member of that Union, some participants in the Berne adherence process perceived "Berne level" copyright protection to be synonymous with "French" copyright protection. As Congress continues to consider modifications to the U.S. copyright law, particularly in the area of moral rights, France again supplies a leading example. And the on-going litigation in France concerning the …
The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger
The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger
Faculty Scholarship
The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.
The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically …
Current Developments Concerning The Settlement Of Disputes Involving States By Arbitration And The World Court – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch
Current Developments Concerning The Settlement Of Disputes Involving States By Arbitration And The World Court – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch
Faculty Scholarship
Our moderator has asked me to talk about the dialogue between the United States and the Soviet Union. With respect to the general contours of the U.S. proposal, I think it is a very constructive one. I do support it, and I urge you all to study it, comment upon it, and try to improve it to take it a bit further. The main feature of it that I want to mention today is the idea of affirmative enumeration of categories of disputes that would be submitted to the Court for jurisdiction as opposed to the historical approach of accepting …
Harry Kalven, The Proust Of The First Amendment, Lee C. Bollinger
Harry Kalven, The Proust Of The First Amendment, Lee C. Bollinger
Faculty Scholarship
Reading A Worthy Tradition makes one nostalgic. For the generation of scholars who cut their first amendment teeth on Harry Kalven's articles, this book offers the experience of a recaptured past. The question is, however, does it offer anything more?
Reflections On Holding And Dictum, Kent Greenawalt
Reflections On Holding And Dictum, Kent Greenawalt
Faculty Scholarship
The aim of these reflections, which adopt the perspectives of ordinary judges and lawyers, is to try to help clarify what is uncontroversial about the distinction between holding and dictum, to explain what is troublesome about it, to provide – in fairly sketchy form – a way of understanding the authority of various legal formulations that do not fit indisputably or wholly comfortably in the category of holding or that of dictum, and to suggest a conceptual vocabulary for expressing the practical realities I consider.
In the autumn of 1986, I taught a course in Legal Method for beginning students …
Delaware's Intermediate Standard For Defensive Tactics: Is There Substance To Proportionality Review?, Ronald J. Gilson, Reinier Kraakman
Delaware's Intermediate Standard For Defensive Tactics: Is There Substance To Proportionality Review?, Ronald J. Gilson, Reinier Kraakman
Faculty Scholarship
The courts have long struggled with a standard for reviewing management's efforts to deter or defeat hostile takeovers. The usual standards of review in corporate law, the business judgment rule and the intrinsic fairness test, do not seem adequate when courts must evaluate defensive measures that implicate both management's business acumen and its loyalty to shareholder interests. Because evaluating a sale of the company is a complex business decision, management's response to a takeover bid resembles the normal business decisions that the business judgment rule largely insulates from judicial review.At the same time, however, a hostile takeover creates a potential …
Legislative Theory And The Rule Of Law: Some Comments On Rubin, Peter L. Strauss
Legislative Theory And The Rule Of Law: Some Comments On Rubin, Peter L. Strauss
Faculty Scholarship
Professor Rubin's article is an admirable piece of work on many levels, from its attention to jurisprudence to its concern with the practical changes in the Congress and its function, and their implications. In commenting on it, I mean to restrict myself to the latter subjects. These are the matters that have the closest tangency to my own work and produce for me the strongest response. Professor Rubin has given us a compelling statement of the problems posed for contemporary constitutional and legislative theory by one transformation in statutory practice accompanying the rise of the administrative state, the change from …
The Constitution's Accommodation Of Social Change, Philip A. Hamburger
The Constitution's Accommodation Of Social Change, Philip A. Hamburger
Faculty Scholarship
Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law – text and interpretation – to accommodate such developments?
The Mandatory/Enabling Balance In Corporate Law: An Essay On The Judicial Role, John C. Coffee Jr.
The Mandatory/Enabling Balance In Corporate Law: An Essay On The Judicial Role, John C. Coffee Jr.
Faculty Scholarship
A half-filled glass of water can be described as either half full or half empty. The structure of American corporate law – partly enabling, partly mandatory in character – can be viewed in much the same way. Some commentators see American corporate law as primarily composed of mandatory rules that the shareholders themselves cannot waive or modify, In their view, this mandatory component compensates both for the absence of true bargaining among the parties and for the inevitable divergence of interests between the principals (the shareholders) and their agents (the managers and directors). Conversely, other commentators, to whom this Article …