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Full-Text Articles in Law

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 ...


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 ...


Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard Jan 2000

Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard

Faculty Scholarship

The boom times for environmental lawyers were the late 1980s and the early 1990s. The June 1990 issue of Money magazine called environmental law a "fast-track career." Two or three years of experience with the U.S. Environmental Protection Agency (EPA), a state environmental agency, the environmental units of the Justice Department, or a state attorney general's office were a ticket to a high-paying job in the private sector. Law students were clamoring to enter the field and law firms were scrambling to find experienced environmental lawyers, or to recycle newly underemployed antitrust lawyers into this burgeoning field.


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 ...


Judicial Auditing, Matthew L. Spitzer, Eric L. Talley Jan 2000

Judicial Auditing, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

This paper presents a simple framework for analyzing a hierarchical system of judicial auditing. We concentrate on (what we perceive to be) the two principal reasons that courts and/or legislatures tend to scrutinize the decisions of lower echelon actors: imprecision and ideological bias. In comparing these two reasons, we illustrate how each may yield systematically distinct auditing and reversal behaviors. While auditing for imprecision tends to bring about evenhanded review/reversal, auditing for political bias tends to be contingent on the first mover's chosen action. Examples of these tendencies can be found in a number of legal applications ...


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 ...


A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West Jan 2000

A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West

Faculty Scholarship

There is a growing bipartisan consensus that flaws in America's death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don't belong there. Others say capital appeals take too long. This report – the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995) – suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically ...


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 ...


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 ...


The Direction Of Corporate Law: The Scholars' Perspective, John C. Coffee Jr., Richard A. Booth, R. Franklin Balotti, David C. Mcbride, Edward P. Welch Jan 2000

The Direction Of Corporate Law: The Scholars' Perspective, John C. Coffee Jr., Richard A. Booth, R. Franklin Balotti, David C. Mcbride, Edward P. Welch

Faculty Scholarship

MR. BALOTTI: Good afternoon. My name is Frank Balotti and I've been asked to be the moderator for this afternoon's program. And one of the privileges that I get is to introduce the panel and to call them up to speak in some kind of order, I hope. And I hope that you and the audience will participate by asking questions towards the end of our panel and get involved in the discussion which we hope to promote.

The topic for this afternoon's panel is a scholar's approach to corporation law. And we are fortunate 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 ...


Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr. Jan 2000

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" could produce ...


The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke Jan 2000

The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary ...


On The Socratic Maxim, Joseph Raz Jan 2000

On The Socratic Maxim, Joseph Raz

Faculty Scholarship

Many years ago John Finnis and I became interested in the Socratic view that it is better to suffer wrong than to do it. My interest was triggered by Anselm Müller's lecture on the subject given at Balliol at that time. Finnis discussed the issue in his Fundamentals of Ethics, where Müller's influence on him is acknowledged. At the time John Finnis and I debated the maxim and had a lengthy correspondence about it, but we did not convince each other. Now when I return to the issue, I can no longer remember the position I then took ...


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. The direct effects of legal rules on individual behavior have been a fruitful source of inquiry for analysts using the techniques of law and economics. Modeling the incentive effects of legal rules provides a useful predictive tool for positive theory and normative critique. Indeed, the tools of ...


The Case For Formalism In Relational Contract, Robert E. Scott Jan 2000

The Case For Formalism In Relational Contract, Robert E. Scott

Faculty Scholarship

The distinguished scholars who gathered last year to honor Ian Macneil and to reflect on his contributions to the understanding of contract and contract law represent diverse methodologies, and they approach the vexing problems raised by relational contracts from different normative perspectives. But on one point, I daresay, they all agree: the central task in developing a plausible normative theory of contract law is to specify the appropriate role of the state in regulating incomplete contracts. Complete contracts (to the extent that they exist in the real world) are rarely, if ever, breached since by definition the payoffs for every ...


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 ...


The President And Choices Not To Enforce, Peter L. Strauss Jan 2000

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.

Issues of constitutional structure and function are among the most ...


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

Common justifications for the use of the letter of credit fail to explain its widespread use. The classic explanation claims that the letter of credit provides an effective assurance of payment from a financially responsible third party. In that story, the seller – a Taiwanese clothing manufacturer, for example – fears that the overseas buyer – Wal-Mart – will refuse to pay once the goods have been shipped. Cross-border transactions magnify the concern, because the difficulties of litigating in a distant forum will hinder the manufacturer's efforts to force the distant buyer to pay. The manufacturer-seller solves that problem by obtaining a letter ...


Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies Jan 2000

Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies

Faculty Scholarship

Patterns of "stop and frisk" activity by police across New York City neighborhoods reflect competing theories of aggressive policing. "Broken Windows" theory suggest that neighborhoods with greater concentration of physical and social disorder should evidence higher stop and frisk activity, especially for "quality of life" crimes. However, although disorder theory informs quality of life policing strategies, patterns of stop and frisk activity suggest that neighborhood characteristics such as racial composition, poverty levels, and extent of social disorganization are stronger predictors of race- and crime-specific stops. Accordingly, neighborhood "street stop" activity reflects competing assumptions and meanings of policing strategy. Furthermore, looking ...


On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz Jan 2000

On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz

Faculty Scholarship

As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method – the free-form, oral interview conducted personally by ...


Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis Jan 2000

Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis

Faculty Scholarship

This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case ("Hormones case") is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular perception ...


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 ...


Patterns Of Legal Change: Shareholder And Creditor Rights In Transition Economies, Katharina Pistor Jan 2000

Patterns Of Legal Change: Shareholder And Creditor Rights In Transition Economies, Katharina Pistor

Faculty Scholarship

This paper analyses changes in the legal protection of shareholder and creditor rights in 24 transition economies from 1990 to 1998. It documents differences in the initial conditions and a tendency towards convergence of formal legal rules as the result of extensive legal reforms. Convergence seems to be primarily the result of foreign technical assistance programs as well as of harmonisation requirements for countries wishing to join the European Union. The external supply of legal rules not withstanding, the pattern of legal reforms suggests that law reform has been primarily responsive, or lagging, rather than leading economic development. In comparison ...


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

Complex "derivative" financial instruments are often used in aggressive tax planning. In response, the government has implemented mark-to-market type reforms, but only partially. Considered in isolation, these incremental reforms are likely to seem well advised in measuring income more accurately. However, there is an important "second best" cost, emphasized in this Article: the ability of well-advised taxpayers either to avoid the new rule or to turn it to their advantage (here called "defensive" and "offensive" planning options, respectively). This Article uses two case studies to identify how these effects arise and to suggest ways of combating them. The first case ...


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

The Political Parties And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

Recent campaign finance innovations of the major political parties have blown large and widening holes in federal campaign finance regulation. The relationship between parties and candidates also challenges the basic doctrinal categories of campaign finance law. The Constitution permits regulation of campaign finances to deal with the danger of corruption. But some judges and commentators have argued that the parties present no danger of corruption. This Article finds that, although parties play a positive role in funding campaigns, certain party practices raise the specter of corruption in the constitutional sense. Moreover, due to the close connection between parties and candidates ...


(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 ...