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Full-Text Articles in Law

The Liberal Commons, Hanoch Dagan, Michael Heller Jan 2000

The Liberal Commons, Hanoch Dagan, Michael Heller

Faculty Scholarship

Must we choose between the benefits of cooperative use of scarce resources and our liberal commitments to autonomy and exit? No. Law can mediate community and liberty? a theory of the liberal commons provides the bridge that reconciles these two seemingly contradictory imperatives. Liberal commons institutions enable a limited group of people to capture the economic and social benefits from cooperation, while also ensuring autonomy to individuals through a secure right to exit. This Article shows how current theories obscure the most salient tradeoffs in managing commons resources; details the liberal commons model comprising the decision-making spheres of individual dominion ...


The Limits Of Behavioral Theories Of Law And Social Norms, Robert E. Scott Jan 2000

The Limits Of Behavioral Theories Of Law And Social Norms, Robert E. Scott

Faculty Scholarship

The law influences the behavior of its citizens in various ways. Well understood are the direct effects of legal rules. By imposing sanctions or granting subsidies, the law either expands or contracts the horizon of opportunities within which individuals can satisfy their preferences. In this way, society can give incentives for desirable behavior. In recent years, the social norms literature has shown that law can also have indirect effects on incentives. By empowering neighbors and other citizens to use public ridicule as an enforcement technique, these laws can influence behavior by imposing informal sanctions, such as shaming. Similarly, these laws ...


An Institutional Emphasis, Lance Liebman Jan 2000

An Institutional Emphasis, Lance Liebman

Faculty Scholarship

Professor Schwartz is an important scholar of the interface between the difficult moral concept of privacy and the new information technologies. Someday a book will tell the story of modem history through the lens of privacy: village lives well known to neighbors; the claims of the national state (taxes, military service); the social welfare state; and the possibilities and dangers of modem biology. As Paul Schwartz has written, DNA and other tools can tell us a great deal about ourselves and can improve our lives; they can also tell employers, drug companies, prospective in-laws, and the police things we prefer ...


The Rise Of Dispersed Ownership: The Role Of Law In The Separation Of Ownership And Control, John C. Coffee Jr. Jan 2000

The Rise Of Dispersed Ownership: The Role Of Law In The Separation Of Ownership And Control, John C. Coffee Jr.

Faculty Scholarship

Deep and liquid securities markets appear to be an exception to a worldwide pattern in which concentrated ownership dominates dispersed ownership. Recent commentary has argued that a dispersed shareholder base is unlikely to develop in civil law countries and transitional economies for a variety of reasons, including (1) the absence of adequate legal protections for minority shareholders, (2) the inability of dispersed shareholders to hold control or pay an equivalent control premium to that which a prospective controlling shareholder will pay, and (3) the political vulnerability of dispersed shareholder ownership in left-leaning "social democracies". Nonetheless, this article finds that significant ...


Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt Jan 2000

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police in ...


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 ...


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 ...


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

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

Faculty Scholarship

The Independent Counsel 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. Following the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr, Congress allowed the statute to sunset. This article assesses and seeks to refute both the standard objections to the now-expired statute and the arguments in favor of a new and improved version. It rejects as false the so-called “discretion dilemma” – the idea that we must choose between under zealous investigation by regular ...


The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann Jan 2000

The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann

Faculty Scholarship

Rules governing letters of credit rest on the premise that they provide a highly certain method of payment to a seller of goods. Thus, the law and the terms of the letter of credit make the obligation of the issuer to provide payment to the seller independent of the purchaser's performance on the underlying contract. Hence, the issuer is obligated to pay the seller upon presentation of specified documents, without regard to the seller's actual compliance with the contract. In practice, however, most drafts on letters of credit in such transactions do not comply with the letter of ...


Information Technology And The Increasing Efficacy Of Non-Legal Sanctions In Financing Transactions, Ronald J. Mann Jan 2000

Information Technology And The Increasing Efficacy Of Non-Legal Sanctions In Financing Transactions, Ronald J. Mann

Faculty Scholarship

This paper investigates the effect of advances in information technology on the private institutions that businesses use to resolve information asymmetries in financing transactions. It discusses four separate effects. First, in some cases information technology will permit direct verification of the information, obviating the problem entirely; the paper discusses the example of the substitution of the debit card for the check, which provides an immediate payment that obviates the need for the merchant to consider whether payment will be forthcoming when the check is presented to the bank on which it is drawn. Second, the paper discusses how advances in ...


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

The Political Parties And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

The major political parties have blown large and widening holes in federal campaign finance law. The most significant party practices – independent expenditures, soft money fundraising, and issue advocacy – map on to the fault lines central to the constitutional law of campaign finance – so that limiting these party activities raises important constitutional question. Indeed, in Colorado Republican Federal Campaign Committee v FEC, a Supreme Court plurality determined that parties, like PACs, may engage in expenditures that are independent of their candidates and, thus, not subject to the limits on party contributions to candidates. So, too, several justices and some political scientists ...


Unocal Fifteen Years Later (And What We Can Do About It), Ronald J. Gilson Jan 2000

Unocal Fifteen Years Later (And What We Can Do About It), Ronald J. Gilson

Faculty Scholarship

The coincidence of the new millennium and the fifteenth anniversary of the Delaware Supreme Court's announcement of a new approach to takeover law provides an appropriate occasion to step back and evaluate a remarkable experiment in corporate law - the Delaware Supreme Court's development of an intermediate standard for evaluating defensive tactics. I will argue that Unocal has developed into an unexplained and, I think, inexplicable preference that control contests be resolved through elections rather than market transactions. In doing so, I will highlight the remarkable struggle between the Chancery Court and the Supreme Court for Unocal's soul ...


Moral Pluck: Legal Ethics In Popular Culture, William H. Simon Jan 2000

Moral Pluck: Legal Ethics In Popular Culture, William H. Simon

Faculty Scholarship

Favorable portrayals of lawyers in popular culture tend to adopt a distinctive ethical perspective. This perspective departs radically from the premises of the elite moralism exemplified by the official ethics of the American bar and the arguments of the proponents of President Clinton's impeachment. While elite moralism is strongly authoritarian and categorical, popular culture exalts a quality that might be called Moral Pluck – a combination of resourcefulness and transgression in the service of basic but informal values. This essay traces the theme of Moral Pluck through three of the most prominent fictional portrayals of lawyers in recent years – the ...


Copyright Use And Excuse On The Internet, Jane C. Ginsburg Jan 2000

Copyright Use And Excuse On The Internet, Jane C. Ginsburg

Faculty Scholarship

1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" ["DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace. This Article addresses recent Internet-related controversies concerning technological ...


The Legal Construction Of Childhood, Elizabeth S. Scott Jan 2000

The Legal Construction Of Childhood, Elizabeth S. Scott

Faculty Scholarship

Two features of the legal regulation of childhood seem troublesome, but ultimately contribute to sensible policies in most contexts. First, the boundary between childhood and adulthood varies in different policy domains, through a regime of age grading under which elementary school students are deemed adults for some legal purposes, while, for other purposes, college students are children. Second, the transitional stage of adolescence is virtually invisible, because, for most purposes, law makers employ binary categories, classifying adolescents as either children or as adults. This framework – a series of legislative bright line rules, arrayed around a presumptive age of majority – generally ...


Trade Secrets And Mutual Investments, Gillian L. Lester, Eric L. Talley Jan 2000

Trade Secrets And Mutual Investments, Gillian L. Lester, Eric L. Talley

Faculty Scholarship

This paper employs an optimal contracting framework to study the question of how courts should adjudicate disputes over valuable trade secrets (such as customer lists). We focus principally on contexts where trade secrets are formed endogenously, through specific, non-contractible investments that could potentially come from either employers or employees (or both). Within such contexts, we argue, an "optimal" trade secret law diverges in many important respects from existing doctrine. In particular, an optimal doctrine would (1) expressly consider the parties' relative skills at making value enhancing investments rather than the mere existence of a valuable informational asset; (2) tend to ...


Sales And Elections As Methods For Transferring Corporate Control, Ronald J. Gilson, Alan Schwartz Jan 2000

Sales And Elections As Methods For Transferring Corporate Control, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

Under standard accounts of corporate governance, capital markets play a significant role in monitoring management performance and, where appropriate, replacing management whose performance does not measure up. Recent case law in Delaware, however, appears to have altered dramatically the mechanisms through which the market for corporate control must operate. In particular, the interaction of the poison pill and the Delaware Supreme Court's development of the legal standard governing defensive tactics in response to tender offers have resulted in a decided, but as yet unexplained, preference for control changes mediated by means of an election rather than by a market ...


Ratcheting Labor Standards: Regulation For Continuous Improvement In The Global Workplace, Charles F. Sabel, Dara O'Rourke, Archon Fung Jan 2000

Ratcheting Labor Standards: Regulation For Continuous Improvement In The Global Workplace, Charles F. Sabel, Dara O'Rourke, Archon Fung

Faculty Scholarship

It is a brute fact of contemporary globalization – unmistakable as activists and journalists catalog scandal after scandal – that the very transformations making possible higher quality, cheaper products often lead to unacceptable conditions of work: brutal use of child labor, dangerous environments, punishingly long days, starvation wages, discrimination, suppression of expression and association. In all quarters, the question is not whether to address these conditions, but how.

That question, however, admits no easy answers. Globalization itself has freed capital from many of its former constraints – national workplace standards, collective bargaining, and supervisory state agencies and courts – designed to humanize working conditions ...


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 ...


Sticks And Snakes: Derivatives And Curtailing Aggressive Tax Planning, David M. Schizer Jan 2000

Sticks And Snakes: Derivatives And Curtailing Aggressive Tax Planning, David M. Schizer

Faculty Scholarship

The most important tax problem of recent months is the impact of aggressive tax planning on corporate tax revenue. The Secretary of the Treasury blames the "tax shelter industry," in which tax lawyers and investment bankers develop and market tax-motivated transactions. This Article analyzes aggressive tax planning, and recommends ways to impede it, in a context rife with opportunities for planning: the tax rules for complex financial instruments known as derivatives. While planning opportunities are prevalent elsewhere in the tax law as well, this Article focuses on derivatives because the problem is particularly acute – indeed, derivatives have been called "[tlhe ...


Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip Genty Jan 2000

Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip Genty

Faculty Scholarship

After almost 12 years in law teaching, I approached my first sabbatical with a single goal: to free myself from cases. At that time my clinic clients were primarily parents who were involved in family court proceedings in which they were trying to preserve their parental rights and get their children out of the foster care system. Such cases are emotionally draining for both the client and the lawyer. Thus, while I welcomed the chance to have a semester off from teaching and attending faculty and committee meetings, I felt that I needed a break from the demands of lawyering ...


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 ...


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 ...


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 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 decision of constitutional issues. This paper seeks to place this ...


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 ...


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 ...


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 ...


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 ...


(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 ...