Law Commons^™

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.

Towards A Defensible Free Exercise Doctrine, Frederick Mark Gedicks

Faculty Scholarship

Almost from the moment that the Supreme Court abandoned the religious exemption doctrine in Employment Division v. Smith, its defenders have worked to bring it back. More than a decade later, however, Smith remains well-entrenched; not only has the Court confirmed Smith's basic holding, but it also struck the Religious Freedom Restoration Act, Congress's first effort to restore the exemption doctrine, at least as it applied to the states.

Proponents of religious exemptions cannot ignore the hard truth that they can no longer be defended. During the nineteenth and early twentieth centuries, American society viewed the practice of religion-mostly Christian …

Protecting The Sacred Sites Of Indigenous People In U.S. Courts: Reconciling Native American Religion And The Right To Exclude, Kevin J. Worthen

Faculty Scholarship

The key to understanding current U. S. caselaw concerning the protection of Native American sacred sites is arguably found in the dissenting opinion of an eighteen-year old case involving not religious freedom, not sacred sites, and not cultural heritage - but the right of Indian tribes to impose severance taxes on non-tribal members who extract oil and gas from tribal lands. In Merrion v. Jicarilla Apache Tribe, Justice Stevens refused to join the majority’s conclusion that the inherent sovereignty of the Jicarilla Apache Tribe included the power to impose such a tax. In his view, a tribe’s authority to regulate …

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 …

Debunking The Myth Of Employer Advantage From Using Mandatory Arbitration For Discrimination Claims, Michael Z. Green

Faculty Scholarship

As a matter of general practice, the use of mandatory arbitration as a dispute resolution mechanism for employment discrimination claims has failed to give employers an overall advantage. Instead, this Article will show that the use of mandatory arbitration to resolve statutory employment discrimination disputes presents a significant number of disadvantages for employers, especially large corporations that operate as repeat players in employment litigation.

First, despite purported cost benefits from using alternative dispute resolution ("ADR"), arbitration can be just as expensive as litigation if not more costly. Second, the reluctance of the Supreme Court to clarify the problems with mandatory …

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" …

Milton Handler: Teacher, Lance Liebman

Faculty Scholarship

I did not know Milton Handler until he was eighty-eight years old.Of course I knew of him. I had lived near the world of Philip Areeda and Steve Breyer, antitrust experts who knew very well that Milton had begun the study of competition law; had been in that founding generation of activist law scholars who implemented the realist vision by expanding the canon of common law courses – contracts, torts, property – to statutory and regulatory fields such as taxation, regulated industries, labor law, and corporations.

Weapons To Fight Insider Trading In The 21st Century: A Call For The Repeal Of Section 16(B), Michael H. Dessent

Faculty Scholarship

No abstract provided.

But Why Not Marriage: Some Thoughts On Vermont’S Civil Unions Law, Same-Sex Marriage, And Separate But (Un)Equal, Barbara Cox

Faculty Scholarship

This article is divided into three sections. Section one considers the positive results from the civil unions law. It recognizes that this legislation represents an important step along the path toward full recognition of same-sex couples by extending significant rights, benefits, and responsibilities beyond opposite-sex marriage." With these benefits, however, come several problems. Section two places the civil unions law along side other examples of "separate but equal" restrictions in the race and sex contexts and considers it within the sexual orientation context. This section explains how government-sponsored segregation has always caused damage to both groups that are taught they …

How Persuasive Is Natural Law Theory?, Kent Greenawalt

Faculty Scholarship

This Article, in honor of John Finnis, evaluates the persuasiveness of one central element of natural law theory – its claim to an objective moral truth discoverable by reason. Although I stand outside the tradition, my interest in natural law theory goes back to my college days. John Finnis, especially in his work Natural Law and Natural Rights, has much enriched my understanding of moral, political, and legal philosophy. Prior to that book, natural lawyers and analytic jurists had little to say to each other; by and large, the members of each group had scant respect for the scholarly endeavors …

Three Issues For The City In The 21st Century, Richard Briffault

Faculty Scholarship

The title for this year’s program of the Section on Urban, State and Local Government Law of the Association of American Law Schools is The City in the 21st Century. These three articles provide a stimulating introduction to three issues that are likely to be central to the study of the city in the twenty-first century-as they were in the twentieth century and in the nineteenth century: the interplay of local and regional forces in land development, the battles among interest groups to control city hall, and the role of local government in promoting local economic development. These issues are …

The Constitutionality Of Copyright Term Extension: How Long Is Too Long, Jane C. Ginsburg, Wendy J. Gordon, Arthur R. Miller, William F. Patry

Faculty Scholarship

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.

This panel will try to determine, on the great continuum of limited times that the Constitution prescribes for copyright in Article I, Section 8, Clause 8, the term of protection that Congress has actually fixed. In other words: How long is too long? Sonny's bill establishes a term of protection of life plus seventy years for individual authors for works created on or after January 1, 1978. The bill retroactively …

Debating The Field Civil Code 105 Years Late, Andrew P. Morriss, Scott J. Burnham, James C. Nelson

Faculty Scholarship

In 1895, Montana adopted a version of the Field Civil Code--a massive law originally drafted by New York lawyer David Dudley Field in the early 1860s. The Civil Code (and its companion Political, Penal, and Procedural Codes) were adopted without debate, without legislative scrutiny, and without Montanans having an opportunity to grasp the enormity of the changes the Codes brought to the Montana legal system. In sponsoring this debate over whether to repeal the Civil Code, the Montana Law Review is finally giving Montana the opportunity to examine the merits of the Civil Code that she was denied 105 years …

Insurance Issues Related To Lateral Hire Musical Chairs, Susan Saab Fortney

Faculty Scholarship

This article addresses the various insurance issues relating to lawyer mobility. Part I of this article introduces the topic by noting the heightened rate of lawyers making lateral moves and how insurance coverage has responded to an increasingly mobile legal labor force. Part II provides a brief historical perspective on insurer reaction to lateral hire claims. Part III analyzes specific policy provisions related to lateral hires for both the prior firm and the new firm. Part IV discusses how a firm and a lateral lawyer should study and address risks before consummating the move. Part V examines the problems related …

The Destructive Role Of Land Use Planning, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

Is land use planning fundamentally different from other forms of central planning? If so, does that difference suggest that land use planning will succeed where other forms of central planning failed? We conclude that land use planning is not fundamentally different from other forms of economic central planning. Further, the working of the market economy, and the long-term success of America's economy, is intertwined in the clear and certain rights and responsibilities generated by the common law of property. The complexity of the modem world does not diminish the need for private property; indeed, it strengthens its imperative. Returning to …