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Full-Text Articles in Law

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 ...


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 ...


The Legal And The Ethical In Legal Ethics: A Brief Rejoinder To Comments On The Practice Of Justice, William H. Simon Jan 1999

The Legal And The Ethical In Legal Ethics: A Brief Rejoinder To Comments On The Practice Of Justice, William H. Simon

Faculty Scholarship

We have here, not the clash of opposites, but a series of family quarrels within what you might call the Party of Aspiration in legal ethics. My seven allies and I all favor lawyers' ethic of more complex judgment, and more responsibility to nonclients than the currently dominant one. The differences among us are not large from the broadest perspective, but they involve issues that are quite important to the elaboration of the sort of alternative ethic we would like to see.

I am enormously grateful for the care and attention the commentators have taken. They have frequently stated my ...


Virtuous Lying: A Critique Of Quasi-Categorical Moralism, William H. Simon Jan 1999

Virtuous Lying: A Critique Of Quasi-Categorical Moralism, William H. Simon

Faculty Scholarship

Popular and professional moralists have a tendency to over-condemn lying. This Article is a critique of that tendency and the more general outlook it exemplifies, which I call Quasi-Categorical Moralism. I begin with an illustration from my own experience of morally appropriate lying that is condemned by the legal profession's ethics norms. I proceed to a critical examination of the arguments against lying in what is perhaps the best known contemporary work on professional ethics – Sissela Bok's Lying. I then explore the more sympathetic treatment of lying in a broad range of literary and philosophical works typically ignored ...


The Past, Present And Future Of Title Vi Of The Civil Rights Act As A Tool Of Environmental Justice, Michael B. Gerrard, Nicholas Johnson, Peggy Shepard, Melva J. Hayden, Sheila Foster, Elizabeth Georges Jan 1999

The Past, Present And Future Of Title Vi Of The Civil Rights Act As A Tool Of Environmental Justice, Michael B. Gerrard, Nicholas Johnson, Peggy Shepard, Melva J. Hayden, Sheila Foster, Elizabeth Georges

Faculty Scholarship

Mr. Michael Gerrard: I am going to try to do something a little unconventional. After hearing some remarks from Professor Johnson, I will try to start a dialogue. I have been requested to ask very tough questions of our panelists, so I will do that in the hope of drawing all of you in the audience into the dialogue. First, we will hear some remarks from Professor Nicholas Johnson of Fordham University School of Law.


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 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 ...


The Boundaries Of Private Property, Michael Heller Jan 1999

The Boundaries Of Private Property, Michael Heller

Faculty Scholarship

The American law of property encourages people to create wealth by breaking up and recombining resources in novel ways. But fragmenting resources proves easier than putting them back together again. Property law responds by limiting the one-way ratchet of fragmentation. Hidden within the law is a boundary principle that keeps resources well-scaled for productive use. Recently, however, the Supreme Court has been labeling more and more fragments as private property, an approach that paradoxically undermines the usefulness of private property as an economic institution and Constitutional category. Identifying the boundary principle threads together disparate property law doctrines, clarifies strange asymmetries ...


A Theory Of Legal Presumptions, Antonio E. Bernardo, Eric L. Talley, Ivo Welch Jan 1999

A Theory Of Legal Presumptions, Antonio E. Bernardo, Eric L. Talley, Ivo Welch

Faculty Scholarship

This paper develops a theoretical account of presumptions, focusing on their capacity to mediate between costly litigation and ex ante incentives. We augment a standard moral hazard model with a redistributional litigation game in which a legal presumption parameterizes how a court "weighs" evidence offered by the opposing sides. Strong pro-defendant presumptions can foreclose lawsuits altogether, but also lead to shirking. Strong pro-plaintiff presumptions have the opposite effects. Moderate presumptions give rise to equilibria in which productive effort and suit occur probabilistically. The socially-optimal presumption trades off litigation costs against agency costs, and could be either strong or moderate, depending ...


A Note On Presumptions With Sequential Litigation, Antonio E. Bernardo, Eric L. Talley Jan 1999

A Note On Presumptions With Sequential Litigation, Antonio E. Bernardo, Eric L. Talley

Faculty Scholarship

This note extends the Bernardo, Talley & Welch (1999) model of legal presumptions to study situations where litigation efforts are spent sequentially rather than simultaneously. The equilibria of the litigation stage are presented as functions of the underlying presumption. The equilibria and comparative statics are shown to be qualitatively similar to those of the simultaneous version. However, sequentiality allows the principal to pre commit to a litigation strategy, and thus possibly preempt any litigation effort whatsoever by the agent.


Rethinking The Uniformity Norm In Commercial Law: Optimal Institutional Design For Regulating Incomplete Contracts, Robert E. Scott Jan 1999

Rethinking The Uniformity Norm In Commercial Law: Optimal Institutional Design For Regulating Incomplete Contracts, Robert E. Scott

Faculty Scholarship

This paper begins with the claim that the state's primary role in uniformly enforcing commercial contracts is to regulate incomplete contracts efficiently. This role requires the state to perform two interdependent but conceptually distinct functions. The first is an interpretive function – the task of correctly (and uniformly) interpreting the meaning of the contract terms chosen by parties to allocate contract risk. The second is a standardizing function – the task of creating broadly suitable default rules or assigning standard meanings to widely used contract terms. Correct interpretation argues for a "textualist" or plain meaning interpretation of the express terms used ...


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

Secured Credit And Software Financing, Ronald J. Mann

Faculty Scholarship

Although software is one of the most important assets many businesses hold, almost nothing has been written about the dynamics of software financing. Under a conventional view of secured financing, the difficulties of liquidating software would limit its value as collateral for secured loans. But the actual transactions belie that view, because lenders advance billions of dollars in asset-based software loans each year.

Part I of the article describes the legal and practical difficulties that make it so impractical for a lender to liquidate software-related collateral: the uncertainty about where to file; the requirement that the borrower deposit the source ...


The Boundaries Of Private Property, Michael Heller Jan 1999

The Boundaries Of Private Property, Michael Heller

Faculty Scholarship

The American law of property encourages people to create wealth by breaking up and recombining resources in novel ways. But fragmenting resources proves easier than putting them back together again. Property law responds by limiting the one-way ratchet of fragmentation. Hidden within the law is a boundary principle that keeps resources well-scaled for productive use. Recently, however, the Supreme Court has been labeling more and more fragments as private property, an approach that paradoxically undermines the usefulness of private property as an economic institution and Constitutional category. Identifying the boundary principle threads together disparate property law doctrines, clarifies strange asymmetries ...


Privatization And Corporate Governance: The Lessons From Securities Market Failure, John C. Coffee Jr. Jan 1999

Privatization And Corporate Governance: The Lessons From Securities Market Failure, John C. Coffee Jr.

Faculty Scholarship

This paper analyzes the comparative experiences of Poland and the Czech Republic with voucher privatization. Because of a number of similarities between these two transitional economies, it finds their comparative experience to provide a useful natural experiment, with the critical distinguishing variable being their different approaches to regulatory controls. However, while their experiences have been very different, their substantive corporate law was very similar. The true locus of regulatory differences appears then to have been the area of securities market regulation, where their approaches differed dramatically.

Re-examining the work of LaPorta, Lopez-de-Silanos, Shleifer & Vishny, this paper submits that (1) the homogenity of both common law systems and civil law systems has been overstated; (2) common law systems in particular differ ...


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

Verification Institutions In Financing Transactions, Ronald J. Mann

Faculty Scholarship

This article examines the institutions that private parties have developed to resolve information asymmetries in financing transactions. It analyzes all of those institutions as variations on the hostage/bond transaction commonly described in the context of relational contracting.

The article proceeds in three steps. The first part provides a simple model of the bonding process that I use to describe the institutions discussed later in the article. That part emphasizes how a one-sided punitive hostage or bond arrangement provides a useful solution by enhancing the cost of a breach yet minimizing the incentive to opportunism by the holder of the ...


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 ...


Application-Centered Internet Analysis, Tim Wu Jan 1999

Application-Centered Internet Analysis, Tim Wu

Faculty Scholarship

Much Internet scholarship tends to analyze the Internet at an inappropriate level of abstraction; focusing on the Internet as one "medium," when – by design – nearly all of the significant facts for certain questions are to be found at the level of the application and its associated protocols. The article suggests that application-centered thinking makes a better tool for the hard Internet questions, such as First Amendment questions (such as filtering) and questions of private ordering.


Lessons From Fiascos In Russian Corporate Governance, Merritt B. Fox, Michael Heller Jan 1999

Lessons From Fiascos In Russian Corporate Governance, Merritt B. Fox, Michael Heller

Faculty Scholarship

Bad corporate governance is often invoked to explain poor enterprise performance, but the catch phrase is never precisely defined. Neither its consequences for the real economy, nor its causes in particular countries has been adequately explained. This paper uses Russian enterprise examples to address these open questions in corporate governance theory. We define corporate governance by looking to the economic functions of the firm rather than to any particular set of national corporate laws. Firms exhibit good corporate governance when their managers maximize residuals and, in the case of investor-owned firms, make pro rata distributions to shareholders.

Using this definition ...


The Limits Of Discipline: Ownership And Hard Budget Constraints In The Transition Economies, Roman Frydman, Cheryl W. Gray, Marek P. Hessel, Andrzej Rapaczynski Jan 1999

The Limits Of Discipline: Ownership And Hard Budget Constraints In The Transition Economies, Roman Frydman, Cheryl W. Gray, Marek P. Hessel, Andrzej Rapaczynski

Faculty Scholarship

This paper, based on a large sample of mid-sized manufacturing firms in the Czech Republic, Hungary and Poland, argues that the imposition of financial discipline is not sufficient to remedy ownership and governance-related deficiencies of corporate performance. The study offers three main conclusions. First, we find that state enterprises represent a higher credit risk both because of their inferior economic performance and because of their lesser willingness or propensity to meet their payment obligations. Second, the brunt of the state firms' lower creditworthiness is borne by their state creditors, as state enterprises deflect the higher risk away from private creditors ...


Revaluing Restitution: From The Talmud To Postsocialism (Reviewing Hanoch Dagan's Unjust Enrichment), Michael Heller, Christopher Serkin Jan 1999

Revaluing Restitution: From The Talmud To Postsocialism (Reviewing Hanoch Dagan's Unjust Enrichment), Michael 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. Hanoch Dagan's book "Unjust Enrichment: A Study of Private Law and Public Values" threatens to reverse the tide and make restitution interesting again. The book shows how we can examine commonplace words such as "value" and "gain" to extract the core social values embedded in the private law. The technicalities of unjust enrichment reveal compelling stories about property, personhood, and national ethos. In our review, we put Dagan's jurisprudential approach to the ...


Privatization And Corporate Governance: The Lessons From Securities Market Failure, John C. Coffee Jr. Jan 1999

Privatization And Corporate Governance: The Lessons From Securities Market Failure, John C. Coffee Jr.

Faculty Scholarship

This paper analyzes the comparative experiences of Poland and the Czech Republic with voucher privatization. Because of a number of similarities between these two transitional economies, it finds their comparative experience to provide a useful natural experiment, with the critical distinguishing variable being their different approaches to regulatory controls. However, while their experiences have been very different, their substantive corporate law was very similar. The true locus of regulatory differences appears then to have been the area of securities market regulation, where their approaches differed dramatically.

Re-examining the work of LaPorta, Lopez-de-Silanos, Shleifer & Vishny, this paper submits that (1) the homogenity of both common law systems and civil law systems has been overstated; (2) common law systems in particular differ ...


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

Deterrence And Distribution In The Law Of Takings, Michael 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 ...


Does Venture Capital Require An Active Stock Market?, Ronald J. Gilson, Bernard S. Black Jan 1999

Does Venture Capital Require An Active Stock Market?, Ronald J. Gilson, Bernard S. Black

Faculty Scholarship

The United States has both an active venture capital industry and well-developed stock markets. Japan and Germany have neither. We argue here that this is no accident – that venture capital can flourish especially – and perhaps only – if the venture capitalist can exit from a successful portfolio company through an initial public offering (IPO), which requires an active stock market. Understanding the link between the stock market and the venture capital market requires understanding the contractual arrangements between entrepreneurs and venture capital providers especially the importance of exit by venture capitalists and the opportunity, present only if IPO exit is possible ...


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 ...


Economic Development, Legality, And The Transplant Effect, Katharina Pistor, Daniel Berkowitz, Jean-Francois Richard Jan 1999

Economic Development, Legality, And The Transplant Effect, Katharina Pistor, Daniel Berkowitz, Jean-Francois Richard

Faculty Scholarship

This paper analyzes the determinants of effective legal institutions (legality) and their impact on economic development today using data from 49 countries. We show that the way the law was initially transplanted and received is a more important determinant than the supply of law from a particular legal family (i.e. English, French, German, or Scandinavian). Countries that have developed legal orders internally, adapted the transplanted law to local conditions, and/or had a population that was already familiar with basic legal principles of the transplanted law have more effective legality than "transplant effect" countries that received foreign law without ...


Reforming Social Security: A Practical And Workable System Of Personal Retirement Accounts, Fred T. Goldberg, Michael J. Graetz Jan 1999

Reforming Social Security: A Practical And Workable System Of Personal Retirement Accounts, Fred T. Goldberg, Michael J. Graetz

Faculty Scholarship

This paper details a method for implementing personal retirement accounts (PRAs) as a part of Social Security reform. The approach described here answers the following questions: how funds are collected and credited to each participants' retirement account; how money is invested; and how funds are distributed to retirees. It is designed to accommodate a variety of answers to a wide range of important policy questions; to minimize administrative costs and distribute those costs in a fair and reasonable way; to minimize the burden on employers, especially small employees who do not now maintain a qualified retirement plan; and to meet ...


Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer Jan 1999

Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer

Faculty Scholarship

In the capital markets, the 1990s have been the decade of executive stock options and the derivatives market. Legal scholars and economists have begun to realize that, in combination, these two trends raise a serious concern. Options are supposed to inspire better performance by tying pay to the stock price. Yet, what if an executive could use the derivatives market to simulate a sale of her option – a practice known as "hedging" – without violating her contract with the firm? The incentive justification for option grants would no longer hold.

This Article demonstrates that the tax law helps avert this consequence ...


Application-Centered Internet Analysis, Tim Wu Jan 1999

Application-Centered Internet Analysis, Tim Wu

Faculty Scholarship

There is a now-standard debate about law and the Internet. One side asserts that the Internet is so new and different that it calls for new legal approaches, even its own sovereign law. The other side argues that, although it is a new technology, the Internet nonetheless presents familiar legal problems. It is a battle of analogies: One side refers to Cyberspace as a place, while the other essentially equates the Internet and the telephone.

In my view, these two positions are both wrong and right: wrong in their characterization of the Internet as a whole, yet potentially right about ...