Law Commons^™

Realization As Subsidy, David M. Schizer

Faculty Scholarship

Perhaps no concept in tax law is so well established, and yet so widely criticized, as realization, the rule that defers tax on appreciated property until it is sold. In this Article, Professor Schizer offers a new justification for realization: It is a subsidy for savings. The recent reduction in the capital gains tax rate suggests that Congress wants such a subsidy, the author observes. He then argues that realization has a significant advantage as a subsidy. It is credible, in that taxpayers expect it to strvive long enough for them to collect it This is important, Professor Schizer then …

Compensation And The Interconnectedness Of Property, Thomas W. Merrill

Faculty Scholarship

Professor Joseph Sax's scholarship on the Takings Clause combines the craft of a first-class lawyer with the passion of a visionary. The good lawyer that he is, Sax's scholarship reflects a deep understanding of Supreme Court case law, legal history, and the practical dimensions of various kinds of land use disputes. Yet his work on takings is not animated by any desire for mere doctrinal tidiness. It is driven by a distinctive vision – one in which the earth's resources are becoming increasingly interconnected and in which there is an increasing need for the government to resolve conflicts regarding the …

Controlling Corporate Agency Costs: A United States-Israeli Comparative Law, Zohar Goshen

Faculty Scholarship

The "Corporation" assumes a central position in modem economic life. This is due mainly to the fact that major portions of our economic activities are performed by corporations. Numerous authors have pondered the essence of the corporate phenomenon, proposing various theories for the uniqueness of the corporation as opposed to other possible structures for operating a business. The main line of analysis focuses on the central characteristic of the modem corporation: the separation of ownership and control. Managing a business through the means of a corporation allows one to exploit the advantages of specialization. On one hand, shareholders benefit from …

Can Patents Deter Innovation? The Anticommons In Biomedical Research, Michael Heller, Rebecca S. Eisenberg

Faculty Scholarship

The "tragedy of the commons" metaphor helps explain why people overuse shared resources. However, the recent proliferation of intellectual property rights in biomedical research suggests a different tragedy, an "anticommons" in which people underuse scarce resources because too many owners can block each other. Privatization of biomedical research must be more carefully deployed to sustain both upstream research and downstream product development. Otherwise, more intellectual property rights may lead paradoxically to fewer useful products for improving human health.

Modern Mail Fraud: The Restoration Of The Public/Private Distinction, John C. Coffee Jr.

Faculty Scholarship

Over their long history, the mail and wire fraud statutes have gone through repeated periods of rapid expansion and contraction. The 1970s saw the flowering of the "intangible rights doctrine," an exotic flower that quickly overgrew the legal landscape in the manner of the kudzu vine until by the mid- 1980s few ethical or fiduciary breaches seemed beyond its potential reach. That doctrine was radically pruned by the Supreme Court in 1987 in the McNally decision, which held that the federal mail and wire fraud statutes reached only those schemes that intentionally sought to deprive their victims of money or …

Dogmas Of The Model Penal Code, George P. Fletcher

Faculty Scholarship

The Model Penal Code has become the central document of American criminal justice. It has had some effect on law reform in over 35 states. More significantly, it provides the lingua franca of most people who teach criminal law in the United States. Most academics think that the precise definitions of culpability states in section 2.02(2) are really neat, and they applaud the liberal rules that restrict the use of strict liability to administrative fines. Indeed, all things considered, for a code drafted with almost total indifference to what might be learned from European models, the Model Penal Code is …

Should The Religion Clauses Of The Constitution Be Amended?, Kent Greenawalt

Faculty Scholarship

Our subject, whether the religion clauses of the federal constitution should be amended, goes to the heart of relations between government and the practice of religion in our society. These relations deeply affect the health of both religion and government. When public officials persecute some religions and embrace others, the risks are political tyranny and rigid, unthinking, unfeeling, vapid religion. No one wishes that fate for us.

When most people ask whether the religion clauses should be amended, they are really asking whether judicial interpretations have become so misguided that Congress and state legislatures should intervene and invoke the cumbersome …

Reflections In A Distant Mirror: Japanese Corporate Governance Through American Eyes, Ronald J. Gilson

Faculty Scholarship

For the last ten years, Japanese corporate governance has served as a distant mirror in whose reflection American academics could better see the attributes of their own system. As scholars came to recognize that the institutional characteristics of the American and Japanese systems were politically and historically contingent, other countries' approaches became serious objects of study, rather than just way stations on the road to convergence. One learned about one's own system from the choices made by others.

As it came to be conceived, the Japanese corporation of the 1980s represented quite a different method of organizing production. Styled the …

"Thinking Like A Lawyer" About Ethical Questions, William H. Simon

Faculty Scholarship

Suppose you had to pick the two most influential events in the recent emergence of ethics as a subject of serious reflection by the bar. Most likely, you would name the Watergate affair of 1974 and the appearance a few years earlier of an article by Monroe Freedman. The article was a discussion of what Freedman called the "Three Hardest Questions" surrounding the responsibilities of criminal defense lawyers^.

Of the two events, Watergate is the most famous but, for our purposes, the least important. It raised no challenging issues of professional responsibility. The lawyer conduct in Watergate that shocked …

Ownership Of Electronic Rights And The Private International Law Of Copyright, Jane C. Ginsburg

Faculty Scholarship

When, in response to a French decision upholding the rights of employee journalists to prevent the publisher's unauthorized licensing of electronic rights in the journalists' articles, French newspaper publishers yearn for "American-style copyright," they must imagine a work-made-for-hire nirvana in which publishers dispose of all rights in contributions to their periodicals, heedless of (and legally shielded from) authors' pesty claims for payment or control. To the extent that the work-made-for-hire doctrine applies, the publishing paradise conjured up by these French fantasies of law "reform" is very real indeed. Under U.S. copyright law, employee creators are not statutory "authors;" their employer …

Deutsche Telekom, German Corporate Governance, And The Transition Costs Of Capitalism, Jeffrey N. Gordon

Faculty Scholarship

In November 1996, Deutsche Telekom AG, the government-owned German telephone company, sold common stock representing approximately 25 percent of the company in a global stock offering that raised approximately DM 20 billion ($13 billion), the largest equity offering ever in Europe. In selling off this equity stake, the German government (i.e., the Federal Republic) had a number of motives. First, the sale was an important step in converting a government-run telephone monopoly into a nimble competitor in the emerging European and world telecommunications market. In anticipation of a fully competitive European telecommunications regime in 1998, Deutsche Telekom ("DT") had been …

Free Speech And Good Character, Vincent A. Blasi

Faculty Scholarship

Early proponents of the freedom of speech such as John Milton, John Stuart Mill, and Louis Brandeis emphasized the role expressive liberty plays in strengthening the character of persons entrusted with such freedom. These theorists argued that character traits such as civic courage, independence of mind, and the capacity to learn from experience and adapt are nurtured by trusting citizens with dangerous ideas. Today there is much talk about good character in relation to free speech disputes-but all on the side of those who would regulate speakers. It is time to remember that a concern about character cuts both ways …

The Erotic Of Torts, Carol Sanger

Faculty Scholarship

"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist ... that ... do[es] not respect the line between the intellectual and the sexual" (p. 12). Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means – and what its implications are for …

The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller

Faculty Scholarship

For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," …

The Process Of Terry-Lawmaking, Daniel C. Richman

Faculty Scholarship

The organizers of this Conference obviously gave a lot of thought to its structure. We started off with a session that showed the Supreme Court at its best, working under the gentle leadership of Chief Justice Warren, and guided by the sage counsel of Justice Brennan, to balance the demands of the Fourth Amendment with the exigencies of street encounters. Now we come to a session in which the Supreme Court comes off well, not merely in one, but in both papers. For Steve Saltzburg, Terry itself may not have been perfect, but, over time, the Court has made it …

Turning Servile Opportunities To Gold: A Strategic Analysis Of The Corporate Opportunities Doctrine, Eric L. Talley

Faculty Scholarship

Perhaps no single motif permeates corporate law and governance literature like the problem of agency costs. Though modest in concept, the canonical principal-agent framework yields fundamental insights into virtually every economic relationship involving the firm. These insights, in turn, not only animate prevailing positive accounts of the modern corporation, but they also provide a normative basis for regulating the oft-lamented gulf between ownership and control.

Despite their pervasiveness, problems of agency costs are rarely more vexing than when an agent is also a potential competitor. A notable example of such a scenario occurs when a corporate manager acquires information about …

The New York City Charter And The Question Of Scale, Richard Briffault

Faculty Scholarship

A central issue for the New York City Charter – from the consolidation of Greater New York City a century ago until today – has been the question of scale. Or perhaps I should say the questions of scale. There really have been two questions: Is New York City large enough to deal with problems of regional scope? Does New York City have the necessary mechanisms to deal with problems that are of sublocal scope? In other words, can the City of New York provide both the regional and local governance New Yorkers need?

The creation of Greater New York …

Global Labor Rights And The Alien Tort Claims Act, Sarah H. Cleveland

Faculty Scholarship

Are labor rights human rights? Are some worker rights so fundamental that must be respected by all nations, and all corporations, under all circumstances? If so, who has the authority to define such rights, and how should they be enforced? What is the effect on the global economy of enforcing international worker rights? These are some of the questions confronted by the authors of Human Rights, Labor Rights, and International Trade, a compilation of essays by an international group of scholars, labor rights activists, and corporate executives addressing contemporary topics in the dialectic among labor, trade, and human rights.

The Great Transformation Of Regulated Industries Law, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on whether the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most clearly in …

Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan

Faculty Scholarship

Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, …

Recent Publications: Puerto Rico, Christina D. Ponsa-Kraus

Faculty Scholarship

Ask yourself why you are reading a review of a book about a colony called Puerto Rico in a journal on international law. Isn't Puerto Rico a self-governing Commonwealth? Isn't it part of the United States? If you decide to buy the book, ask yourself where in the bookstore you should look for it. In the international relations section? The U.S. history section? A turn-of-the-century Supreme Court case analyzing the status of Puerto Rico (and other territories "acquired" by the United States in 1901) may provide some guidance: Puerto Rico is "foreign in a domestic sense."' Perhaps the bookstore has …

The European Intergovernmental Conference: An American Perspective, George A. Bermann

Faculty Scholarship

Peter Herzog's career-long interest in the European Communities makes it especially appropriate to include in this festschrift a contribution on what has become the principal mechanism for reforming the treaties that constitute those Communities. I refer of course to the "intergovernmental conferences," or "IGCs" for short. As this festschrift goes to press, the fifteen Member States are submitting the results of the latest IGC – the 1997 Treaty of Amsterdam – to their respective national ratification processes.

As its name suggests, the intergovernmental conference is a gathering of representatives of the Member States to discuss and eventually agree upon amendments …

Reflections On The Papers Presented By Weiler, Goebel, And Meyers & Levie, George A. Bermann

Faculty Scholarship

The preceding papers amply demonstrate that an important step in the progressive integration of the European Union can be a compelling one without being an easy one. The transition to economic and monetary union (EMU) in Europe is precisely such a step. In this brief comment, I hope merely to show that, however powerful may be the case for economic and monetary union, passage to it is both generating institutional misgivings and entailing what could be institutional mistakes.

I begin with the case for economic and monetary union, which I consider to be a very strong one indeed. Not many …

Crime In Public Housing: Clarifying Research Issues, Jeffrey A. Fagan, Tamara Dumanovsky, J. Phillip Thompson, Garth Davies

Faculty Scholarship

In recent years, crime and public housing have been closely linked in our political and popular cultures. Tragic episodes of violence have reinforced the notion that public housing is a milieu with rates of victimization and offending far greater than other locales. However, these recent developments belie the complex social and political evolution of public housing from its origins in the 1930s, through urban renewal, and into the present.

Stereotypes abound about public housing, its management, residents, and crime rates. In reality, variation is the norm, and it is these variations that affect crime. The study of crime in public …

Secret Knowledge Of Genocide: British Failure To Disclose The Killing Of Jews In 1941, Kent Greenawalt

Faculty Scholarship

In the late summer and early autumn of 1941, the British military intercepted coded German radio messages that revealed that German troops were killing large numbers of Jewish civilians in German-occupied parts of the Soviet Union. The British did not make this knowledge public at that time, nor did they use their still classified records during the war crimes trials after the end of World War II.

Commentators more expert than I have addressed themselves to the question of whether the British had a legal obligation to disclose the information from the coded messages. These remarks concentrate on the possible …

A Response To The Video, Charles F. Sabel

Faculty Scholarship

Let me preface my remarks by informing you that I am not a lawyer. That means that there are things I don't get and things that I'll say that you may not grasp immediately, because there are certain assumptions we don't share. To illustrate that, let me just tell you, I don't even get lawyer jokes.

For example, when I saw the movie So Goes A Nation, and Sam Sue says, "Law schools teach basic skills," I didn't realize that was a joke until you all laughed at it. So there are many subtleties of this sort that escape me. …

Police, Community Caretaking, And The Fourth Amendment, Debra A. Livingston

Faculty Scholarship

The local police have multiple responsibilities, only one of which is the enforcement of criminal law. Police gather eyewitness accounts in the aftermath of a shooting, but they also assist lost children in locating their parents. Police identify and arrest those who have committed felonies, but they also respond to heart attack victims and help inebriates find their way home. Sometimes police check on the well-being of elderly citizens. As Professor Goldstein said some twenty years ago, "The total range of police responsibilities is extraordinarily broad .... Anyone attempting to construct a workable definition of the police role will typically …

The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox

Faculty Scholarship

This Article addresses the appropriate reach of the U.S. mandatory securities disclosure regime. While disclosure obligations are imposed on issuers, they are triggered by transactions: the public offering of, or public trading in, the issuers' shares. Share transactions are taking on an increasingly transnational character. The barriers to a truly global market for equities continue to lessen: financial information is becoming increasingly globalized and it is becoming increasingly inexpensive and easy to effect share transactions abroad. There are approximately 41,000 issuers of publicly traded shares in the world. For an ever larger portion of these issuers, there will be significant …

Emerging Statutory And Constitutional Tools For States To Resist Federal Environmental Regulation, Michael B. Gerrard

Faculty Scholarship

This is a time of high tensions between the federal government and the states over environmental regulation. The flashpoints include actions by the U.S. Environmental Protection Agency (EPA) against states that enact laws shielding environmental audit reports from discovery; the withdrawal of several states from certain regulatory reform programs and delegated programs; and EPA accusations that some states are ignoring many violations of the pollution control laws, and loud denials by state representatives.

The Supremacy Clause of the U.S. Constitution and the complex of federal environmental statutes enacted in the 1970s and 1980s still give Washington the upper hand in …

New York State's Brownfields Programs: More And Less Than Meets The Eye, Michael B. Gerrard

Faculty Scholarship

New York, as the nation's second most populous state, and one of its oldest and most urban, has an abundance of brownfields-slightly contaminated properties that were formerly used for industrial purposes, but that are now unused or underused, and ripe for redevelopment if they can be cleaned up. Thus, it may be surprising that New York is one of the few states without a comprehensive statute or regulation for the voluntary cleanup of brownfields.

There is, however, more here than meets the eye. New York has three important programs and several smaller ones that provide procedures, money, or incentives for …