Law Commons^™

The Evolution Of Corporate Law: A Cross- Country Comparison, Katharina Pistor, Yoram Keinan, Jan Kleinheisterkamp, Mark D. West

Faculty Scholarship

The importance of law and legal institutions for economic development is widely acknowledged today. The invention of credit mechanisms to support long-distance trade has been hailed as one of the preconditions for the development of capitalism in Europe. The corporate form is regarded as another milestone for industrialization, the creation of viable market economies, and ultimately economic prosperity. Many former socialist countries quickly enacted new corporate codes or revived their pre-World War Two ("WWII") legislation. The failure of major privatization efforts to enhance enterprise efficiency is attributed to weaknesses in corporate governance, of which the corporate law is a crucial …

Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt

Faculty Scholarship

The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.

The Birth, Death, And Rebirth Of The World Trade Center And The Fate Of New York, Michael B. Gerrard

Faculty Scholarship

The year in the title has finally arrived, and in Stanley Kubrick's classic film 2001: A Space Odyssey, the appearance of large monoliths marks important transitions in human civilization. In New York City, the construction, destruction and possible reconstruction of the twin monoliths of the World Trade Center also mark historical transitions. Among the things transformed with each event is our relationship to the physical environment.

The Rise And Fall Of Article 2, Robert E. Scott

Faculty Scholarship

In August 13,2001 the National Conference of Commissioners on Uniform State Laws voted eighty-nine to fifty-three to reject the Amendments to Article 2 of the Uniform Commercial Code that had just been approved in May by the American Law Institute. The vote followed a last minute effort by the Article 2 drafting committee to amend the scope provisions of Article 2 in response to continuing criticism from representatives of the software and information industries. Several months later, at the request of the NCCUSL leadership, amended Article 2 with its revised scope provision was withdrawn from the agenda of the ALI …

Discretion In Long-Term Open Quantity Contracts: Reining In Good Faith, Victor P. Goldberg

Faculty Scholarship

Long-term contracts often promise to deliver the seller's full output, the buyer's requirements, or some variation on these. For example, an electric utility might enter into a thirty year contract with a coal mine promising that it will take all the coal needed to supply a particular generating plant. These open quantity contracts have raised two issues. The first is whether the promise was illusory. If the utility had no duty to take any coal, a court could have found that there was no consideration and, therefore, no contract. While there was a time when full output and requirements contracts …

The Community Economic Development Movement, William H. Simon

Faculty Scholarship

Within a five-minute walk of the Stony Brook subway stop in the Jamaica Plain section of Boston, you can encounter the following:

• A renovated industrial site of about five acres and sixteen buildings that serves as a business incubator for small firms that receive technical assistance from the Jamaica Plain Neighborhood Development Corporation (JPNDC), a nonprofit community development corporation, which is also housed there. Known as the Brewery after its former proprietor, a beer-maker, the complex is owned by a nonprofit subsidiary of JPNDC.
• A 44,000-foot "Stop & Shop" supermarket. The market opened in 1991 after years in which the …

Smart Growth And American Land Use Law, Richard Briffault

Faculty Scholarship

The smart growth movement that emerged in the late 1990's seeks to change the way Americans think about growth, development, and urban planning. From a legal perspective, smart growth directly challenges several fundamental aspects of American land use law.

Substantively, smart growth attacks two goals that have been hallmarks of American land use law for more than three-quarters of a century: (1) decongestion, that is, reducing population density and dispersing residents over wider areas; and (2) the separation of different land uses from each other. Both decongestion and separation of uses were enshrined in the Standard Zoning Enabling Act …

The Contested Right To Vote, Richard Briffault

Faculty Scholarship

For those who believe the United States is a representative democracy with a government elected by the people, the events of late 2000must have been more than a little disconcerting. In the election for our most important public office – our only truly national office – the candidate who received the most popular votes was declared the loser while his second place opponent, who had received some 540,000 fewer votes, was the winner. This result turned on the outcome in Florida, where approximately 150,000 ballots cast were found not to contain valid votes. Further, due to flaws in ballot design, …

Illiberal Liberalism: Liberal Theology, Anti-Catholicism, & Church Property, Philip A. Hamburger

Faculty Scholarship

Liberalism has long been depicted as neutral and tolerant. Already in the eighteenth-century, when Englishmen and Americans began to develop modem conceptions of what they called "liberality," they characterized it as elevated above narrow interest and prejudice. Of course, liberality or what now is called "liberalism" can be difficult to define with precision, and there have been divergent, evolving versions of it. Nonetheless, liberalism has consistently been understood to transcend narrow self-interest or bigotry. Accordingly, many Americans have confidently believed in it as a neutral, tolerant, and even universalistic means of claiming freedom from the constraints of traditional and parochial …

100 Million Unnecessary Returns: A Fresh Start For The U.S. Tax System, Michael J. Graetz

Faculty Scholarship

We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments were concerned principally with positioning Democratic and Republican candidates for the 2002 congressional election, not tax policy.

But the coming decade, with its paint-by-numbers phase-ins and phaseouts of 2001 Act tax changes, the tax cuts waiting to spring into effect, and the sunset of the entire …

The Storrs Lectures: Liberals And Romantics At War: The Problem Of Collective Guilt, George P. Fletcher

Faculty Scholarship

Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms – none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that …

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Faculty Scholarship

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses rules …

Educating Citizens, Peter L. Strauss

Faculty Scholarship

Socrates and his followers, the Cynics among them, put great store in educating the youths who would become the leaders of the Athenian republic. The Athenians agreed that education of their youth was of the utmost importance for their state, and executed Soc-rates for corrupting them. As I thought about how these concluding remarks could do more than cast a pale reflection of the extraordinary learning and thought that have preceded them, talking about education leapt to mind.

Credit Cards And Debit Cards In The United States And Japan, Ronald J. Mann

Faculty Scholarship

The widespread use of cards is one of the most salient features of consumer retail payment systems in the United States. American consumers use those cards to pay for about one-fourth of their retail purchases each year. And this is not a static phenomenon; among other things, the use of debit cards, though still relatively small, is rising rapidly. That pattern of use is not, however, typical of other countries. Even in some highly industrialized nations, consumers use cards to pay for purchases much less frequently. Statistics from the Bank for International Settlements, for example, suggest about sixty card-based payment …

Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

The Quarterly's Fall 2001 issue published a Note reviewing our report, A Broken System: Error Rates in Capital Cases, 1973-1995. That Note has three inaccuracies that are so clear and frequently repeated, and are the result of such clear cite-checking lapses, that remedial steps are required. These matters do not involve differences of opinion, judgment, or interpretation between us and the Note's author. Matters of that sort are appropriately addressed in a response. All instead are misstatements of fact that result from the Quarterly's failure to fulfill its basic obligation to check the accuracy of verifiable factual statements it …

Vangrack's Explanations: Treating The Truth As A Mere Matter Of "Form", Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

We welcome criticism by responsible scholars and readers, and the chance to address it in journals that enforce appropriate standards of accuracy and integrity. We have done just that in exchanges in Judicature and the Indiana Law Journal.

But the inaccuracies in Adam VanGrack's Note, and new problems with his present explanation, lead us to conclude that it is not useful to exchange views with him in the Washington University Law Quarterly. Beyond all is Mr. VanGrack's dismissal of matters serious enough to trigger an extraordinary instruction to explain himself in print, and to prompt him to rescind …

Law And Regulatory Competition: Can They Co-Exist?, John C. Coffee Jr.

Faculty Scholarship

It is possible to read Stephen Choi's article with admiration and enjoyment – until a critical point is reached at its very end. In an analysis that is balanced, nuanced, and thorough, Professor Choi initially reviews the recent debate over the role of law in fostering the development of financial markets. As others have also concluded, he finds a correlation between quality of law and financial development. At a few points, he may accept too easily the claim that the common law is superior to the civil law in fostering economic growth, without adequately considering the problem of multicollinearity that …

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

What happens to adolescents once placed in the criminal justice system and the potential violations of human rights that ensue is the focus of this essay. The pace of change, the severity of the new laws, the potential for unintended negative outcomes, and the empirical reality of adult punishment of juvenile offenders creates new urgency to these questions. Unfortunately, there has been little analysis of the comparative effects of statutes and administrative laws that relocate juvenile offenders to the adult court, and there has been virtually no research on the efficacy, impact and consequences of sentencing juveniles as adults. There …

Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle Cooper Dreyfuss, Jane C. Ginsburg

Faculty Scholarship

The proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters is currently drafted to cover most fields of private litigation, including intellectual property. However, as those following the Hague process are aware, the Convention has run into considerable difficulties. There is currently reason to be concerned that it may not be promulgated at all, or that if it is promulgated, that it will be reduced in scope and cover only select areas of litigation, likely not to include intellectual property. This proposal is meant to spur the intellectual property bar to consider whether it would be …

Racing Towards The Top?: The Impact Of Cross-Listing And Stock Market Competition On International Corporate Governance, John C. Coffee Jr.

Faculty Scholarship

Cross-listing by foreign issuers onto U.S. exchanges accelerated during the 1990s, bringing international market centers into competition for listings and draining liquidity from some regional markets. Although cross-listing has traditionally been explained as an attempt to break down market segmentation and to increase investor recognition of the cross-listing firm, the globalization of financial markets and instantaneous electronic communications render these explanations increasingly dated. A superior explanation is "bonding": Issuers migrate to U.S. exchanges because by voluntarily subjecting themselves to the United States's higher disclosure standards and greater threat of enforcement (both by public and private enforcers), they partially compensate for …

On The Demise Of Shareholder Primacy ( Or, Murder On The James Trains Express), Eric Talley

Faculty Scholarship

The hypothetical introduced by Vice Chancellor Leo Strine's Essay exposes an important arena of corporate governance where adherence to the traditional norm of "shareholder primacy" is particularly troublesome. In fact, it is hard to find an analogous domain of corporate governance law that is as jarringly discontinuous as that found in the factual circumstances suggested by Strine's hypothetical. Explicitly, the legal scrutiny accorded to managers who resist a hostile acquisition depends critically on whether a court invokes the Revlon doctrine or the Unocal doctrine as the appropriate governing standard. Under the former (and its progeny), shareholder primacy arguments carry …