Law Commons^™

What Law Is Like, George P. Fletcher

Faculty Scholarship

It is not easy to do philosophy in the tradition of Wittgenstein and Malcolm. The human mind gravitates toward authority – the Bible, great teachers, poets, gurus, even judges. Lawyers, in particular, are captives of authoritive constitutions, statutes, cases, and ruling doctrines. We cannot make a move without citing a source as a backup.

Perhaps this is the way it should be, for as lawyers or legal theorists, we speak in a particular legal culture and tradition. We cultivate that tradition, even as we dissent and subject it to criticism. The tradition is defined by the authorities that have shaped …

Cyberspace Sovereignty? – The Internet And The International System, Tim Wu

Faculty Scholarship

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

By linking with the Internet, we don't mean absolute freedom of information. I think there is a general understanding about this. If you go through customs, you have to show your passport. It's the same with management of information. There is no contradiction at all between the development of telecommunications …

Interpretation And Judgment, Kent Greenawalt

Faculty Scholarship

The major conclusions in Georgia Warnke's illuminating Essay, Law, Hermeneutics, and Public Debate are persuasive, but some that appear almost self-evident instead rest on controversial evaluative judgments. Many of my comments deal with these complexities, drawing from her book on interpretation and political theory as well as her Essay. Other remarks develop subjects Warnke barely touches. My thoughts are, thus, some combination of clarification, supplementation, and disagreement.

My initial effort is to refine in just what senses interpretations of texts, social practices, and legal rules must speak to our concerns. I next explore how interpretations of legal texts that are …

Provisional Relief In Transnational Litigation, George A. Bermann

Faculty Scholarship

In this article, Professor Bermann identifies and analyzes the principal problems raised by the rapidly growing phenomenon of transnational provisional relief National courts are facing serious challenges in organizing such interventions, but as yet lack a sufficiently comprehensive framework of analysis. The author begins with the clarifying distinction that provisional relief may be transnational either because of its significant effects abroad or because it lends support to protective measures ordered by foreign courts, and draws on the experiences of U.S. and foreign courts in determining the costs of both granting and withholding provisional relief He concludes that, despite the very …

The Role Of Criminal Law In Policing Corporate Misconduct, Gerard E. Lynch

Faculty Scholarship

In the early 1990s, I spent a couple of years as Chief of the Criminal Division in the Office of the U.S. Attorney for the Southern District of New York. One of my principal responsibilities was to hear "appeals" from defense lawyers, usually, although not exclusively, in white collar crime cases. These lawyers felt that their clients should not be indicted, or that the plea offer they had received from the prosecutor in charge of the case was unduly severe. Sometimes their arguments were essentially factual contentions that the government had the wrong take on the evidence – that the …

"Prescriptive Equality": Two Steps Forward, Kent Greenawalt

Faculty Scholarship

In this Response to Professor Peters, Professor Greenawalt argues that prescriptive equality does have meaningful normative force. Prescriptive equality plays a reinforcing role when it agrees with nonegalitarian justice and is not incoherent when it pulls against nonegalitarian justice. Specifically, when one individual has been treated better than is required by nonegalitarian justice, a similarly situated and significantly related individual who is aware of that treatment may merit equivalent treatment because of widespread and deep-seated feelings about equality.

The Role Of Secured Credit In Small-Business Lending, Ronald J. Mann

Faculty Scholarship

The traditional perspective holds that large firms in our economy use unsecured credit and small firms use secured credit. Existing scholarship, however, has provided little explanation of that pattern. In a recent article, I attributed the use of unsecured credit by large firms to the limited capacity of secured credit to lower the lending costs of creditworthy companies. This article uses data from a dozen interviews with small-business bankers to explain the small-business half of that lending pattern. To the extent smallbusiness lenders require secured credit, they do so largely for one significant benefit: secured credit allows small-business lenders to …

Private Ownership And Corporate Performance: Some Lessons From Transition Economies, Roman Frydman, Cheryl W. Gray, Marek P. Hessel, Andrzej Rapaczynski

Faculty Scholarship

Data on mid-sized firms in three transition economies provide strong evidence that private ownership – for worker ownership – improves corporate performance. And the privatized firms' superior ability to generate revenues allows those firms to sustain or expand employment.

Using a large sample of data on mid-sized firms in the Czech Republic, Hungary, and Poland, Frydman, Gray, Hessel, and Rapacynski compare the performance of privatized and state firms in the environment of the postcommunist transition.

They find strong evidence that private ownership – for worker ownership – improves corporate performance. They find no evidence of the privatization shock that was …

Indemnity Of Legal Fees, Avery W. Katz

Faculty Scholarship

This article surveys the effects of legal fee shifting on a variety of decisions arising before and during the litigation process. Section 2 provides a brief survey of the practical situations in which legal fee shifting does and does not arise. Section 3 analyzes the effects of indemnification on the incentives to expend resources in litigated cases. Section 4 examines how indemnification influences the decisions to bring and to defend against suit, and Section 5 assesses its effects on the choice between settlement and trial. Section 6 addresses the interaction between the allocation of legal fees and the parties' incentives …

Contract Formation And Interpretation, Avery W. Katz

Faculty Scholarship

Much research in law and economics, following Coase's insight that the effects of a legal rule depend on the ability of those whom it governs to bargain around it, has undertaken to explain how substantive entitlements such as property rights influence the bargaining process. Perhaps more important than any substantive rights or duties in this regard, however, is the extensive body of contract doctrine that governs the procedural mechanics of exchange. The formal rules of contract formation, by attaching consequences to the various acts and omissions that bargainers can choose from in a negotiation, affect the parties' incentives to make …

Territoriality, Risk Perception, And Counterproductive Legal Structures: The Case Of Waste Facility Siting, Michael B. Gerrard

Faculty Scholarship

The siting of hazardous and nuclear waste facilities has proven to be a task of enormous difficulty in our federal system. In this Article, the Author argues that one of the major causal factors for this difficulty is that the legal regime surrounding waste facility siting decisions is not structured in a manner sensitive to the human factors involved. The siting of a hazardous waste facility is likely to generate a negative community response where the imposition of externally made decisions and externally generated wastes fails to take into account the innate human trait of territoriality. Territoriality is a powerful …

Does Public Choice Theory Justify Judicial Activism After All?, Thomas W. Merrill

Faculty Scholarship

Some legal scholars have argued that public choice theory justifies certain kinds of judicial activism. Others have said it does not. Given the present state of the debate, it would appear that those finding no necessary support for judicial activism have the stronger argument. I will suggest, however, that if we tweak the analysis a little further, it may turn out that public choice theory provides limited support for judicial activism after all.

Ethics, Professionalism, And Meaningful Work, William H. Simon

Faculty Scholarship

Much of the anxiety and dissatisfaction associated with legal ethics arises from the categorical quality of the bar's dominant norms. These norms take the form of relatively inflexible rules insensitive to all but a few of the circumstances of the cases they govern. Hence they often require the lawyer to take actions that contribute to injustice or to refrain from actions that would avert injustice.

For example, many lawyers believe that a criminal defender is obliged to impeach a truthful complaining witness even though the only immediate purpose of this tactic is to encourage the trier to draw a mistaken …

The Rise Of Sublocal Structures In Urban Governance, Richard Briffault

Faculty Scholarship

The dominant law and economics model of local government, based on the work of Charles M. Tiebout, assumes that decentralization of power to local governments promotes the efficient delivery of public goods and services. In his seminal article, A Pure Theory of Local Expenditures, Tiebout contended that the existence of a large number of local governments in any given area permits a "market solution" to the question of how to determine the level and mix of government services that people desire. The multiplicity of local governments in an area means that, as long as each locality is free to …

Campaign Finance, The Parties And The Court: A Comment On Colorado Republican Federal Campaign Committee V. Federal Elections Commission, Richard Briffault

Faculty Scholarship

Last term, In Colorado Republican Federal Campaign Committee v. Federal Election Commission, the Supreme Court considered a direct attack on the constitutionality of the Federal Election Campaign Act's ("FECA") limits on political party expenditures. Colorado Republican was the Court's first campaign finance case in six years and the first in which the four Justices appointed by Presidents Bush and Clinton had an opportunity to participate. Colorado Republican was also the first case in the twenty-year regime of Buckley v. Valeo concerned with the constitutionality of restrictions on parties. Coming at a time of rising public concern, increased legislative activity, …

The Folklore Of Investor Capitalism, John C. Coffee Jr.

Faculty Scholarship

Ideally, Thurman Arnold should review this book. In his The Folklore of American Capitalism, Arnold dissected the ideology and rationalizations by which the business community of an earlier day defended its legitimacy and perquisites. Michael Useem, a sociologist at the Wharton School, also has an interest in the ideology of the business community: how corporate managers view the new institutional investors, how they justify resistance, and the tensions and inconsistencies between their critiques of money managers and their own behavior. This is an underutilized perspective (which law and economics inherently tends to overlook), and Useem is at his best …

Employees, Pensions, And The New Economic Order, Jeffrey N. Gordon

Faculty Scholarship

The "New Economic Order" in the United States is a regime of trade liberalization, a robust market in corporate control, and labor market flexibility. Among the consequences over the 1980-1995 period is a divergence between the growth rate of corporate profits and stocks prices, which have increased by approximately 250% in real terms, and wages, which have barely increased at all, except for the top quintile. Contrary to popular belief employees have not significantly participated through their pension funds in this stock market appreciation. In the historically dominant defined benefit pension plan, the sponsoringfirm, not the employee, is the residual …

"Just Say Never?" Poison Pills, Deadhand Pills, And Shareholder-Adopted Bylaws: An Essay For Warren Buffett, Jeffrey N. Gordon

Faculty Scholarship

My topic is Buffett on mergers and acquisitions and how his sage advice on the importance of shareholder choice should be taken to heart by the Delaware Supreme Court, which will soon face far-reaching questions on the distribution of power between shareholders and the board of directors. Recent judicial decisions in other jurisdictions: (i) have declared that a board can maintain a poison pill in the face of a premium hostile bid, the power to "just say no;" (ii) have validated the board's adoption of a so-called "deadhand pill," a poison pill that can be redeemed only by continuing directors; …

Spending Limits And The Squandering Of Candidates' Time, Vincent A. Blasi

Faculty Scholarship

Today I begin with a narrow agenda, a single idea, but an extravagant ambition. My narrow agenda is that I wish to address only the topic of campaign spending limits, and only the issue of their constitutionality in the face of First Amendment objections. The policy questions regarding whether spending limits are equitable, efficacious, and/or enforceable are deeply difficult and interesting but beyond my ken on this occasion.

My single idea is that spending limits are best justified on the ground that they protect candidates for office from having to devote an inordinate amount of their time to the task …

In Honor Of Stefan A. Riesenfeld, Lori Fisler Damrosch

Faculty Scholarship

In this issue dedicated to Professor Riesenfeld, his achievements as a scholar and teacher will appropriately receive central attention. As a contributor who also worked with him in his Washington days, I would like first to recall a few anecdotes from that time (which I hope he remembers as fondly as I do) and then turn to an assessment of his contributions to the literature on the interface between the constitutional and international law of treaties.

From The Bottom Up, Kent Greenawalt

Faculty Scholarship

This Article is about carrying out informal instructions given by people in authority. Although many scholars have written about how legal interpretation resembles interpretation in fields such as literature and religion, few have compared informal instructions and legal rules. My most basic assumption in this Article is that focus on informal situations can illumine the standards people use in performing instructions and the kinds of meaning they attribute to instructions. As my title implies, if we reflect on what amounts to faithful or desirable performance of informal directives and the more conceptual question of what these prescriptive standards "mean," we …

William J. Brennan, Jr., American – In Memoriam, Gerard E. Lynch

Faculty Scholarship

No abstract provided.

The Invisible Barbecue, Eben Moglen

Faculty Scholarship

Past legislation subsidizing the development of infrastructural technology has borne the mark of political corruption. The subject matter of the Telecommunications Act of 1996 falls within the same category of legislation that has fallen prey to this process in the past. In an effort to discern whether such forces are at work today, Professor Moglen undertakes a critical examination of the metaphors that pervade the current scholarly discourse on the subject of telecommunications law. Terms such as "Superhighway," "Broadcasting," and "Market for Eyeballs" reveal a great deal about the implicit assumptions at work behind the current scholarship and legislation, and …

Asteroids And Comets: U.S. And International Law And The Lowest-Probability, Highest Consequence Risk, Michael B. Gerrard, Anna W. Barber

Faculty Scholarship

Asteroids and comets pose unique policy problems. They are the ultimate example of a low probability, high consequence event: no one in recorded human history is confirmed to have ever died from an asteroid or a comet, but the odds are that at some time in the next several centuries (and conceivably next year) an asteroid or a comet will cause mass localized destruction and that at some time in the coming half million years (and conceivably next year), an asteroid or a comet will kill several billion people. The sudden extinction of the dinosaurs, and most other species 65 …

What's Wrong With Sexual Harassment, Katherine M. Franke

Faculty Scholarship

In this article, Professor Franke asks and answers a seemingly simple question: why is sexual harassment a form of sex discrimination under Title VII of the Civil Rights Act of 1964? She argues that the link between sexual harassment and sex discrimination has been undertheorized by the Supreme Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassment law that trivializes the legal norm against sex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassment as …

Old Chief V. United States: Stipulating Away Prosecutorial Accountability?, Daniel Richman

Faculty Scholarship

Earlier this year, in Old Chief v. United States, the Supreme Court finally resolved a circuit split on a nagging evidentiary issue: When a defendant charged with being a convicted felon in possession of a firearm offers to satisfy one of the statute's elements by stipulating to the existence of a prior felony conviction, may the government decline the stipulation and prove the existence and the nature of that prior felony?

The question of evidence law resolved in Old Chief is not particularly earth-shattering. Indeed, while the Court divided five to four on the issue, neither Justice Souter's opinion …

William J. Brennan, Jr., Peter L. Strauss

Faculty Scholarship

When I was privileged to be Justice Brennan's law clerk, he had not yet earned even from his own law school the affection and respect that have prompted the editors of this law review, and doubtless many others, to offer an issue in dedication to him. In the three decades following, he made his claim to both unmistakably clear. His extraordinary tenure on the Court produced 1360 opinions, spread over the last 146 of the Court's first 497 volumes. Nearly a decade after his retirement, it is probably still the case that more opinions in constitutional law teaching materials carry …

Police Discretion And The Quality Of Life In Public Places: Courts, Communities, And The New Policing, Debra A. Livingston

Faculty Scholarship

The advent of community and problem-oriented policing – the so-called "quality-of-life" policing philosophies – raises complex questions concerning police discretion in addressing minor street misconduct and judicial response to that discretion. In this Article, Debra Livingston addresses these questions by reassessing the ways in which courts have employed the facial vagueness doctrine to limit police discretion in the performance of "order maintenance" tasks. Livingston contends that aggressive employment of the facial vagueness doctrine is an inadequate mechanism for limiting police discretion and at the same time could impair positive change in the direction of community and problem-oriented policing. As an …

The Truth About Secured Financing, Robert E. Scott

Faculty Scholarship

The debate over the social value of secured credit (and the appropriate priority for secured claims in bankruptcy) is entering its nineteenth year. Yet the continuing publication of succeeding generations of articles exploring the topic have yielded precious little in the way of an emerging scholarly consensus about the nature and function of secured credit. Put simply, we still do not have a theory, of finance that explains why firms sometimes (but not always) issue secured debt rather than unsecured debt or equity. Moreover (and perhaps because of the lack of any plausible general theory), we lack any persuasive empirical …

Golden Rules For Transboundary Pollution, Thomas W. Merrill

Faculty Scholarship

Environmental law is becoming ever more centralized. In the United States, state and local pollution laws have been eclipsed by federal regulation. In the European Community, and to a lesser degree under the North American Free Trade Agreement (NAFTA), national controls have been supplemented by regional regulation. And the growing importance of treaties regulating particular aspects of the global environment has reinforced calls for more general regimes of international environmental regulation.

One inevitably given justification for this centralizing trend is that pollution is a transboundary phenomenon. Air and water pollution, and to a lesser extent groundwater contamination, can cross political …