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Critical Approaches To Property Institutions, Michael A. Heller Jan 2000

Critical Approaches To Property Institutions, Michael A. Heller

Faculty Scholarship

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost ...


Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith Jan 2000

Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

A central difference between contract and property concerns the freedom to "customize" legally enforceable interests. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. Certain types of promises – such as promises to commit a crime – are declared unenforceable as a matter of public policy. But outside these relatively narrow areas of proscription and requirements such as definiteness and (maybe) consideration, there is a potentially infinite range of promises that the law will honor. The parties to a contract are free to be ...


The Political Parties And Campaign Finance Reform, Richard Briffault Jan 2000

The Political Parties And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

Recent campaign finance innovations of the major political parties have blown large and widening holes in federal campaign finance regulation. The relationship between parties and candidates also challenges the basic doctrinal categories of campaign finance law. The Constitution permits regulation of campaign finances to deal with the danger of corruption. But some judges and commentators have argued that the parties present no danger of corruption. This Article finds that, although parties play a positive role in funding campaigns, certain party practices raise the specter of corruption in the constitutional sense. Moreover, due to the close connection between parties and candidates ...


(Baby) M Is For The Many Things: Why I Start With Baby M, Carol Sanger Jan 2000

(Baby) M Is For The Many Things: Why I Start With Baby M, Carol Sanger

Faculty Scholarship

For several years now I have begun my first-year contracts course with the 1988 New Jersey Supreme Court case In the Matter of Baby M. In this essay, I want to explain why. I offer the explanation in the spirit of modest proselytizing, recognizing that many of us already have a favored method or manner into the course: some introductory questions we pose before leaping into (or over) the introductions already provided by the editors of the many excellent casebooks available. But I have found that Baby M works extremely well in ways that others may want to consider. It ...


The President And Choices Not To Enforce, Peter L. Strauss Jan 2000

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.

Issues of constitutional structure and function are among the most ...


Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies Jan 2000

Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies

Faculty Scholarship

Patterns of "stop and frisk" activity by police across New York City neighborhoods reflect competing theories of aggressive policing. "Broken Windows" theory suggest that neighborhoods with greater concentration of physical and social disorder should evidence higher stop and frisk activity, especially for "quality of life" crimes. However, although disorder theory informs quality of life policing strategies, patterns of stop and frisk activity suggest that neighborhood characteristics such as racial composition, poverty levels, and extent of social disorganization are stronger predictors of race- and crime-specific stops. Accordingly, neighborhood "street stop" activity reflects competing assumptions and meanings of policing strategy. Furthermore, looking ...


Drug Treatment Courts And Emergent Experimental Government, Michael C. Dorf, Charles F. Sabel Jan 2000

Drug Treatment Courts And Emergent Experimental Government, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and ...


On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz Jan 2000

On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz

Faculty Scholarship

As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method – the free-form, oral interview conducted personally by ...


Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's The Role Of Letters Of Credit In Payment Transactions, Avery W. Katz Jan 2000

Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's The Role Of Letters Of Credit In Payment Transactions, Avery W. Katz

Faculty Scholarship

No abstract provided.


Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis Jan 2000

Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis

Faculty Scholarship

This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case ("Hormones case") is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular perception ...


In Search Of Best Efforts: Reinterpreting Bloor V. Falstaff, Victor P. Goldberg Jan 2000

In Search Of Best Efforts: Reinterpreting Bloor V. Falstaff, Victor P. Goldberg

Faculty Scholarship

When contracting parties cannot quite define their obligations, they often resort to placeholder language, like "best efforts." They (and their counsel) likely have little idea of what they might mean, but, so long as they avoid litigation, it will not matter much. But "best efforts" clauses are on occasion litigated, and courts must read content into them. In Bloor v. Falstaff, a casebook favorite, the court held that Falstaff s lackluster promotional efforts for Ballantine beer violated its best efforts covenant. So far as I can tell, no commentators have questioned this outcome. Indeed, some commentators have found Falstaff s ...


Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard Jan 2000

Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard

Faculty Scholarship

There are 3,119,963 square miles in the continental United States. That sounds like plenty of space to put just about anything. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era – unconstrained siting – lasted until the late 1960s. Then began the second era – protecting natural areas. In the early 1990s, we embarked upon a third era – environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that we should ...


The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke Jan 2000

The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary ...


Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman Jan 2000

Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman

Faculty Scholarship

The Independent Counsel (IC) statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr.

Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end, bringing criminal charges against people believed to have ...


Corporate Governance Lessons From Russian Enterprise Fiascoes, Merritt B. Fox, Michael A. Heller Jan 2000

Corporate Governance Lessons From Russian Enterprise Fiascoes, Merritt B. Fox, Michael A. Heller

Faculty Scholarship

This Article draws on a rich array of deviant behavior in Russian enterprises to craft lessons for corporate governance theory. First, Professors Fox and Heller define corporate governance by looking to the economic functions of the firm. Based on this definition, they develop a typology that comprehensively shows all the channels through which bad corporate governance can inflict damage on a country's real economy. Second, they explain the causes of Russian enterprise fiascoes by looking to the particular initial conditions prevailing at privatization – untenable firm boundaries and insider allocation of firm shares – and the bargaining dynamics that have followed ...


Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard Jan 2000

Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard

Faculty Scholarship

The boom times for environmental lawyers were the late 1980s and the early 1990s. The June 1990 issue of Money magazine called environmental law a "fast-track career." Two or three years of experience with the U.S. Environmental Protection Agency (EPA), a state environmental agency, the environmental units of the Justice Department, or a state attorney general's office were a ticket to a high-paying job in the private sector. Law students were clamoring to enter the field and law firms were scrambling to find experienced environmental lawyers, or to recycle newly underemployed antitrust lawyers into this burgeoning field.


Localism And Regionalism, Richard Briffault Jan 2000

Localism And Regionalism, Richard Briffault

Faculty Scholarship

Localism and regionalism are normally seen as contrasting, indeed conflicting, conceptions of metropolitan area governance. Localism in this context refers to the view that the existing system of a large number of relatively small governments wielding power over such critical matters as local land use regulation, local taxation, and the financing of local public services ought to be preserved. The meaning of regionalism is less clearly defined and proposals for regional governance vary widely, but most advocates of regionalism would shift some authority from local governments, restrict local autonomy, or, at the very least, constrain the ability of local governments ...


The Nature And Function Of Criminal Theory, George P. Fletcher Jan 2000

The Nature And Function Of Criminal Theory, George P. Fletcher

Faculty Scholarship

The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment; the theory of justification and of excuse, that is, of wrongdoing and responsibility; the relevance of consequences to the gravity of offenses (the problem of moral luck); and the ...


(Baby) M Is For The Many Things: Why I Start With Baby M, Carol Sanger Jan 2000

(Baby) M Is For The Many Things: Why I Start With Baby M, Carol Sanger

Faculty Scholarship

For several years now I have begun my first-year contracts course with the 1988 New Jersey Supreme Court case In the Matter of Baby M. In this essay, I want to explain why. I offer the explanation in the spirit of modest proselytizing, recognizing that many of us already have a favored method or manner into the course: some introductory questions we pose before leaping into (or over) the introductions already provided by the editors of the many excellent casebooks available. But I have found that Baby M works extremely well in ways that others may want to consider. It ...


The Case For Formalism In Relational Contract, Robert E. Scott Jan 2000

The Case For Formalism In Relational Contract, Robert E. Scott

Faculty Scholarship

The distinguished scholars who gathered last year to honor Ian Macneil and to reflect on his contributions to the understanding of contract and contract law represent diverse methodologies, and they approach the vexing problems raised by relational contracts from different normative perspectives. But on one point, I daresay, they all agree: the central task in developing a plausible normative theory of contract law is to specify the appropriate role of the state in regulating incomplete contracts. Complete contracts (to the extent that they exist in the real world) are rarely, if ever, breached since by definition the payoffs for every ...


Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott Jan 2000

Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott

Faculty Scholarship

Americans have interesting and somewhat puzzling attitudes about the state's role in defining and enforcing family obligations. Most people view lasting marriage as an important part of their life plans and take the commitment of marriage very seriously. Yet any legal initiative designed to reinforce that commitment generates controversy and is viewed with suspicion in many quarters. For example, covenant marriage statutes, which offer couples entering marriage the option of undertaking a modest marital commitment, are seen by many observers as coercive and regressive measures rather than ameliorating reforms.

The law tends to reflect – and perhaps contributes to – this ...


The Landscape Of Constitutional Property, Thomas W. Merrill Jan 2000

The Landscape Of Constitutional Property, Thomas W. Merrill

Faculty Scholarship

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before we ...


Critical Approaches To Property Institutions, Michael A. Heller Jan 2000

Critical Approaches To Property Institutions, Michael A. Heller

Faculty Scholarship

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost ...


Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr. Jan 2000

Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr.

Faculty Scholarship

In two recent and highly technical decisions – Amchem Products v. Windsor and Ortiz v. Fibreboard Corp. – the Supreme Court has recognized that a serious potential for collusion exists in class actions and has outlined a concept of "class cohesion" as the rationale that legitimizes representative litigation. Although agreeing that a legitimacy principle is needed, Professor Coffee doubts that "class cohesion" can bear that weight, either as a normative theory of representation or as an economic solution for the agency cost and collective action problems that arise in representative litigation. He warns that an expansive interpretation of "class cohesion" could produce ...


The Overproduction Of Death, James S. Liebman Jan 2000

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors (who generate more death ...


Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer Jan 2000

Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer

Faculty Scholarship

Options are granted to executives to inspire better performance by tying pay to the employer's stock price. Yet this incentive rationale no longer holds if executives can use the derivatives market to simulate a sale of their options, a practice known as hedging. This Article evaluates the effectiveness of existing legal constraints on hedging by executives, including limits derived from contract, securities and tax law. Although investment bankers have been searching for ways around these constraints, the bottom line is that, at least for now, executives are unable to hedge option grants: While contractual limits are rare, the securities ...


The President And Choices Not To Enforce, Peter L. Strauss Jan 2000

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

This paper was one of a number given in a panel on executive authority in a Duke Law School conference, "The Constitution Under Clinton: A Critical Assessment." As its title suggests, the principal subject of the panel was the President's authority, if any, to decline to implement statutes he regards as unconstitutional. The lead paper on the panel focused specifically on questions of the scope of the President's authority to engage in constitutional interpretation, relating that analysis to the role of the courts and their institutional responsibilities for deciding constitutional issues. This paper seeks to place this set ...


The Case For Formalism In Relational Contract, Robert E. Scott Jan 2000

The Case For Formalism In Relational Contract, Robert E. Scott

Faculty Scholarship

The central task in developing a plausible normative theory of contract law is to specify the appropriate role of the state in regulating incomplete or relational contracts. Complete contracts (to the extent that they exist in the real world) are rarely, if ever, breached since by definition the pay-offs for every relevant action and the corresponding sanctions for non performance are prescribed in the contract. In the case of incomplete (or relational) contracts, however, parties have incentives to breach by exploiting gaps in the contract. Making the verifiable terms of the contract legally enforceable and regulating incompleteness in a consistent ...


Economic Reasoning And The Framing Of Contract Law: Sale Of An Asset Of Uncertain Value, Victor P. Goldberg Jan 2000

Economic Reasoning And The Framing Of Contract Law: Sale Of An Asset Of Uncertain Value, Victor P. Goldberg

Faculty Scholarship

By analyzing two American contract law decisions, the paper illustrates the usefulness of economic analysis in framing the inquiry. The cases have a common feature, unrecognized by the courts: they both deal with the production and transfer of information regarding the sale of an asset of uncertain value. One involves the combination of an option and a lockup to encourage the buyer to produce information. The other involves contingent compensation to convey the seller's assurance of the quality of the assets. Once this is recognized, the outcomes are straightforward.


From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg Jan 2000

From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg

Faculty Scholarship

This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in § 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if ...