Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Columbia Law School

1999

Discipline
Keyword

Articles 1 - 30 of 59

Full-Text Articles in Law

The Constitution And The Cathedral: Prohibiting, Purchasing, And Possibly Condemning Tobacco Advertising, Thomas W. Merrill Jan 1999

The Constitution And The Cathedral: Prohibiting, Purchasing, And Possibly Condemning Tobacco Advertising, Thomas W. Merrill

Faculty Scholarship

This Article has both theoretical and practical objectives, which are closely interrelated. The theoretical objective is to develop a framework for understanding the "transaction structure" of constitutional rights. By this, I refer to the different rules that determine when the government may purchase, condemn, or otherwise extinguish constitutional rights. The practical objective is to consider different options that may be available to the government, as part of a broader effort to reduce the incidence of smoking, to curtail tobacco advertising that would otherwise be protected under the First Amendment. It is my hope that the theoretical framework will illuminate the ...


Secured Credit And Software Financing, Ronald J. Mann Jan 1999

Secured Credit And Software Financing, Ronald J. Mann

Faculty Scholarship

Software is a relatively new type of business asset, but already has taken on a central role in all sectors of the economy; when any asset brings such a crucial value to businesses, the desire for lending based on that asset cannot be far behind. Unfortunately, the existing academic literature contains no sustained examination of software-related lending.

Because the software industry is in its infancy, the existing empirical evidence is inadequate to support any understanding of it. Accordingly, I undertook a series of twenty-nine informal interviews with industry participants, including lenders in both the Massachusetts Route 128 corridor and Silicon ...


Verification Institutions In Financing Transactions, Ronald J. Mann Jan 1999

Verification Institutions In Financing Transactions, Ronald J. Mann

Faculty Scholarship

One of the most common problems in commercial transactions is the resolution of information asymmetries, situations in which one party to the transaction knows more about a relevant fact than the other party. The natural response of the disadvantaged party is to attempt to investigate the transaction for itself – to investigate the matter with "due diligence" – but often such an investigation will be expensive and, however diligently undertaken, leave the truth of the matter uncertain. A law-centered approach to the problem would call for the development of warranties and covenants that the party with superior information would give to the ...


Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier Jan 1999

Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier

Faculty Scholarship

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not ...


The Cutting Edge Of Poster Law, Michael A. Heller Jan 1999

The Cutting Edge Of Poster Law, Michael A. Heller

Faculty Scholarship

Students place tens of thousands of posters around law schools each year – in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go – and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?


The Future As History: The Prospects For Global Convergence In Corporate Governance And Its Implications, John C. Coffee Jr. Jan 1999

The Future As History: The Prospects For Global Convergence In Corporate Governance And Its Implications, John C. Coffee Jr.

Faculty Scholarship

What forces explain corporate structure and shareholder behavior? For decades this question has gone unasked, as both corporate law scholars and practitioners tacitly accepted the answer given in 1932 by Adolf Berle and Gardiner Means that the separation of ownership and control stemming from ownership fragmentation explained and assured shareholder passivity. Over this decade, however, corporate law scholars have recognized that this standard answer begs an essential prior question: if ownership fragmentation explains shareholder passivity, what explains ownership fragmentation? Although the Berle and Means model assumed that large-scale enterprises could raise sufficient capital to conduct their operations only by attracting ...


Japan's Experience With Deposit Insurance And Failing Banks: Implications For Financial Regulatory Design?, Curtis J. Milhaupt Jan 1999

Japan's Experience With Deposit Insurance And Failing Banks: Implications For Financial Regulatory Design?, Curtis J. Milhaupt

Faculty Scholarship

This Article examines three decades of Japanese experience with deposit insurance andfailing banks, and analyzes the implications of that experience for bank safety net reform in other countries. To date, the literature and policy debate on deposit insurance have been heavily colored by U.S. banking history and have focused almost exclusively on explicit deposit protection schemes. Analysis of Japan's safety net experience suggests that (a) deposit insurance, for all its flaws, is superior to the real-world alternative-implicit government protection of depositors and discretionary regulatory intervention in bank distress, (b) a well-designed explicit deposit insurance system that includes a ...


The Boundaries Of Private Property, Michael A. Heller Jan 1999

The Boundaries Of Private Property, Michael A. Heller

Faculty Scholarship

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive ...


Lifetime Employment: Labor Peace And The Evolution Of Japanese Corporate Governance, Ronald J. Gilson, Mark J. Roe Jan 1999

Lifetime Employment: Labor Peace And The Evolution Of Japanese Corporate Governance, Ronald J. Gilson, Mark J. Roe

Faculty Scholarship

In Japan, large firms' relationships with their employees differ from those prevailing in large American firms. Large Japanese firms guarantee many employees lifetime employment, and the firms' boards consist of insider employees. Neither relationship is common in the United States.

Japanese lifetime employment is said to encourage firms and employees to invest in human capital. We examine the reported benefits of the firm's promise of lifetime employment, but conclude that it is no more than peripheral to human capital investments. Rather, the "dark" side of Japanese labor practice – constricting the external labor market – likely yielded the human capital benefits ...


The Benefits And Risks Of Going It Alone, Michael B. Gerrard Jan 1999

The Benefits And Risks Of Going It Alone, Michael B. Gerrard

Faculty Scholarship

Brownfield projects are essentially real estate developments with a twist, and the old real estate adage certainly applies: "Location, location, location." But if time is the fourth dimension, then time is also the fourth element in a successful brownfield project – preferably, spending as little of it as possible.

The timing of standard governmental cleanup processes is simply incompatible with many kinds of real estate projects. Forget about cleanups of National Priorities List (NPL) sites under the U.S. Environmental Protection Agency's National Contingency Plan (NCP); those take on average almost twenty years to complete. But even many state voluntary ...


Foreword, Elizabeth S. Scott Jan 1999

Foreword, Elizabeth S. Scott

Faculty Scholarship

In November 1998, the interdisciplinary Center for Children, families and the Law at the University of Virginia sponsored a conference on Youth Violence and Juvenile Justice Reform. The conference brought together an extraordinary group of experts from the academic disciplines of law, criminology and psychology. Before an audience made up of researchers, students, policymakers, and practitioners in the field of juvenile justice, these experts analyzed legal policy toward juvenile crime from a variety of disciplinary and methodological perspectives. The articles in this important symposium issue of the Virginia Journal of Social Policy & the Law are based on the papers and ...


Grand Jury Secrecy: Plugging The Leaks In An Empty Bucket, Daniel Richman Jan 1999

Grand Jury Secrecy: Plugging The Leaks In An Empty Bucket, Daniel Richman

Faculty Scholarship

Although people can quarrel about the significance or reliability of Independent Counsel Kenneth Starr's investigative findings, no one can deny that his investigation produced new law. We now know that the attorney-client privilege survives the death of the client, that government lawyers may not rely on that privilege to shield communications from their "client" relating to criminal misconduct, and that there is no "protective function privilege" (at least not yet), While bringing some clarity to certain areas, the Independent Counsel's investigation also highlighted the confused state of the law relating to Rule 6(e)'s grand jury secrecy ...


Crime And Work, Jeffrey Fagan, Richard B. Freeman Jan 1999

Crime And Work, Jeffrey Fagan, Richard B. Freeman

Faculty Scholarship

Crime and legal work are not mutually exclusive choices but represent a continuum of legal and illegal income-generating activities. The links between crime and legal work involve trade-offs among crime returns, punishment costs, legal work opportunity costs, and tastes and preferences regarding both types of work. Rising crime rates in the 1980s in the face of rising incarceration rates suggest that the threat of punishment is not the dominant cost of crime. Crime rates are inversely related to expected legal wages, particularly among young males with limited job skills or prospects. Recent ethnographic research shows that involvement in illegal work ...


Beyond The Independent Counsel: Evaluating The Options, Thomas W. Merrill Jan 1999

Beyond The Independent Counsel: Evaluating The Options, Thomas W. Merrill

Faculty Scholarship

The Independent Counsel Act expires on June 30, 1999. Should it be extended? Extended with modifications? Radically reformed? Or should it be allowed to sunset with nothing put in its place? To answer these questions, we need to address some more fundamental questions: (1) Do we truly need an independent office to investigate alleged wrongdoing by high-ranking officers of the executive branch? (2) If so, what are the options for the organizational structure of such an office? (3) By what criteria should the different institutional options be evaluated? (4) Under these criteria, which option represents the best, or perhaps more ...


Siegecraft And Surrender: The Law And Strategy Of Cities And Targets, Matthew C. Waxman Jan 1999

Siegecraft And Surrender: The Law And Strategy Of Cities And Targets, Matthew C. Waxman

Faculty Scholarship

The razing of Jericho; the sack of Magdeburg; the siege of Leningrad; the fire-bombing of Dresden. Ever since civilizations began organizing permanent economic settlements, cities and towns have occupied a central role in warfare and in our images of war." On almost every page of historical writings," remarked Grotius, "you may find accounts of the destruction of whole cities, or the leveling of walls to the ground, the devastation of fields, and conflagrations." A driving force behind the evolution and development of cities has been defense and security. As a result, how-ever, cities have become a primary target or object ...


An Economic Analysis Of The Guaranty Contract, Avery W. Katz Jan 1999

An Economic Analysis Of The Guaranty Contract, Avery W. Katz

Faculty Scholarship

Guaranty arrangements, in which one person stands as surety for a second person's obligation to a third, are ubiquitous in commercial transactions and in commercial law. In recent years, however, scholarly attention to the topic has been scant; and no one has systematically analyzed this body of law and practice from an economic policy perspective. Accordingly, this Article attempts to outline the basic economic logic underlying the guaranty relationship, and applies the results to a variety of specific issues in government policy and private planning. It poses and answers three main questions: First, why would a creditor prefer to ...


Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier Jan 1999

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Faculty Scholarship

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters ...


The Collapse Of The Harm Principle, Bernard Harcourt Jan 1999

The Collapse Of The Harm Principle, Bernard Harcourt

Faculty Scholarship

In November 1998, fourteen neighborhoods in Chicago voted to shut down their liquor stores, bars, and lounges, and four more neighborhoods voted to close down specific taverns. Three additional liquor establishments were voted shut in February 1999. Along with the fourteen other neighborhoods that passed dry votes in 1996 and those that went dry right after Prohibition, to date more than 15% of Chicago has voted itself dry. The closures affect alcohol-related businesses, like liquor stores and bars, but do not restrict drinking in the privacy of one's hoifie. The legal mechanism is an arcane 1933 "vote yourself dry ...


Randolph W. Thrower Lecture: Your Tax Dollars At Work: Why U.S. Tax Law Needs To Be Changed, Michael J. Graetz Jan 1999

Randolph W. Thrower Lecture: Your Tax Dollars At Work: Why U.S. Tax Law Needs To Be Changed, Michael J. Graetz

Faculty Scholarship

I focus here on prospects for tax reform. Things are quiet, politically, on the tax reform front. The Republicans in 1999 are talking about an across-theboard tax cut less extensive than Ronald Reagan's tax cut of 1981. On February 1, 1999, President Clinton, in his budget proposals, offered thirty-eight "targeted" tax reduction proposals and seventy-four tax increase proposals. It took the Treasury Department 197 closely typed, single-spaced pages to describe the proposals. We do not appear to be on the verge of major tax simplification.


Revaluing Restitution: From The Talmud To Postsocialism, Michael A. Heller, Christopher Serkin Jan 1999

Revaluing Restitution: From The Talmud To Postsocialism, Michael A. Heller, Christopher Serkin

Faculty Scholarship

Whatever happened to the study of restitution? Once a core private law subject along with property, torts, and contracts, restitution has receded from American legal scholarship. Few law professors teach the material, fewer still write in the area, and no one even agrees what the field comprises anymore. Hanoch threatens to reverse the tide and make restitution interesting again. The book takes commonplace words such as "value" and "gain" and shows how they embody a society's underlying normative principles. Variations across cultures in the law of unjust enrichment reflect differences in national understandings of sharing, property, and even personhood ...


Why Start-Ups ?, Joseph Bankman, Ronald J. Gilson Jan 1999

Why Start-Ups ?, Joseph Bankman, Ronald J. Gilson

Faculty Scholarship

The prototypical start-up involves an employee leaving her job with an idea and selling a portion of that idea to a venture capitalist. In many respects, however, the idea should be worth more to the former employer. The former employer can be expected to have better information concerning the employee-entrepreneur and the technology, have opportunities to capture economies of scale and scope not available to a venture capital-backed start-up, and will receive more favorable tax treatment than the start-up should the innovation fail. In connection with an auction of the idea, the former employer should have both a more accurate ...


The Legal Infrastructure Of High Technology Industrial Districts: Silicon Valley, Route 128, And Covenants Not To Compete, Ronald J. Gilson Jan 1999

The Legal Infrastructure Of High Technology Industrial Districts: Silicon Valley, Route 128, And Covenants Not To Compete, Ronald J. Gilson

Faculty Scholarship

In recent years, scholars and policymakers have rediscovered the concept of industrial districts – spatial concentrations of firms in the same industry or related industries. In this Article, Professor Gilson examines te relationship between high-technology industrial districts and legal infrastructure by comparing the legal regimes of California's Silicon Valley and Massachusetts's Route 128. He contends that legal rides governing employee mobility influence the dynamics of high technology industrial districts by either encouraging rapid employee movement between employers and to startups, as in Silicon Valley, or discouraging such movement, as in Route 128. Because California does not enforce post-employment covenants ...


Precedential Cascades: An Appraisal, Eric Talley Jan 1999

Precedential Cascades: An Appraisal, Eric Talley

Faculty Scholarship

About a half century ago, a handful of social scientists began to formalize what was to become the analytical heart of neoclassical economics. Under the broad rubric of "general equilibrium theory," these scholars demonstrated (in varying degrees of mathematical sophistication) the longstanding intuition behind the so-called "invisible hand": that is, that competitive markets could convert apparent disarray and fragmentation into order and harmony. More explicitly, general equilibrium theory demonstrated how a decentralized collection of self-interested individuals could, through competitive market transactions, allocate scarce goods and services in a socially efficient manner. An equally powerful corollary attended this central insight: that ...


The Place Of Victims In The Theory Of Retribution, George P. Fletcher Jan 1999

The Place Of Victims In The Theory Of Retribution, George P. Fletcher

Faculty Scholarship

Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment.

Admittedly, victims and their ...


In God's Image: The Religious Imperative Of Equality Under Law, George P. Fletcher Jan 1999

In God's Image: The Religious Imperative Of Equality Under Law, George P. Fletcher

Faculty Scholarship

This Essay argues that the principle of equality under law is best grounded in a holistic view of human dignity. Rejecting modem attempts to justify equality by reducing humanity to a particular actual characteristic, it articulates a religious imperative to treat people equally by drawing on biblical as well as modern philosophical sources. The principle "all men are created equal," as celebrated in the Declaration of Independence and Gettysburg Address, draws on this holistic understanding of humanity. This admittedly romantic approach to equality generates a critique of contemporary Supreme Court doctrine, including the prevailing approaches to strict scrutiny, affirmative action ...


Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher Jan 1999

Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher

Faculty Scholarship

The practice of disenfranchising felons, though decreasing, is still widespread. In this Article, Professor George Fletcher reflects on the use of disenfranchisement as punishment, the lack of a convincing theoretical justification for it, and its disproportionate impact on the African.American community. Fletcher presents a number of powerful arguments against the constitutionality of the practice, but he emphasizes that there is a deeper problem with disenfranchisement as punishment: It reinforces the branding of felons as an "untouchable" class and thus helps to prevent their effective reintegration into our society.


Reforming Labor Law For The New Century, Lance Liebman Jan 1999

Reforming Labor Law For The New Century, Lance Liebman

Faculty Scholarship

No abstract provided.


The Supreme Court, Sexual Citizenship And The Idea Of Progress, Kendall Thomas Jan 1999

The Supreme Court, Sexual Citizenship And The Idea Of Progress, Kendall Thomas

Faculty Scholarship

Is American Progressive Constitutionalism dead ... yet? I propose to seek the beginnings of an answer to this question in the pages of a recent decision by the United States Supreme Court. I do feel obliged to say this, not because I am committed to a court-centered adjudicative conception of American constitutionalism; to the contrary. But rather, because the decision on which I want to focus seems to me to offer a rich resource for critical reflection on the idea of self-government whose connections to Progressive Constitutionalism give us our topic this afternoon.


Localism And Regionalism, Richard Briffault Jan 1999

Localism And Regionalism, Richard Briffault

Faculty Scholarship

Localism and regionalism are normally seen as conflicting, conceptions of metropolitan area governance. Localism is the belief that the existing system of a large number of relatively small governments wielding power over such critical matters as land use regulation, local taxation, and the financing of local public services ought to be preserved. Regionalism would move some power to institutions, organizations or procedures with a larger territorial scope and more population than existing local governments. Regionalism appears to be a step towards centralization, and the antithesis of the decentralization represented by localism. Yet, in the metropolitan areas that dominate America at ...


Optimal Timing And Legal Decisionmaking: The Case Of The Liquidation Decision In Bankruptcy, Douglas G. Baird, Edward R. Morrison Jan 1999

Optimal Timing And Legal Decisionmaking: The Case Of The Liquidation Decision In Bankruptcy, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Until the firm is sold or a plan of reorganization is confirmed, Chapter 11 entrusts a judge with the decision of whether to keep a firm as a going concern or to shut it down. The judge revisits this liquidation decision multiple times. The key is to make the correct decision at the optimal time. This paper models this decision as the exercise of a real option and shows that it depends critically on particular types of information about the firm and its industry. Liquidations take place too soon if we merely compare the liquidation value of the assets with ...