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Full-Text Articles in Law

Competition Among Securities Markets: A Path Dependent Perspective, John C. Coffee Jr. Jan 2001

Competition Among Securities Markets: A Path Dependent Perspective, John C. Coffee Jr.

Faculty Scholarship

Today, there are an estimated 150 securities exchanges trading stocks around the world. Tomorrow (or at least within the reasonably foreseeable future), this number is likely to shrink radically. The two great forces reshaping the contemporary world – globalization and technology – impact the world of securities markets in a similar and mutually reinforcing fashion:

  1. they force local and regional markets into more direct competition with distant international markets;
  2. they increase overall market capitalization and lower the cost of equity capital, as issuers are enabled to access multiple markets; and
  3. they permit order flow and liquidity to migrate quickly from local markets ...


Can Copyright Become User-Friendly? Essay Review Of Jessica Litman, Digital Copyright, Prometheus Books 2001, Jane C. Ginsburg Jan 2001

Can Copyright Become User-Friendly? Essay Review Of Jessica Litman, Digital Copyright, Prometheus Books 2001, Jane C. Ginsburg

Faculty Scholarship

Professor Litman has written Digital Copyright for the general public, though lawyers, and especially copyright lawyers, would do well to read it. Professor Litman's message is straightforward: Copyright law is too complicated and counterintuitive. It has been written by and for copyright lawyers who represent many, but not all, of the players. Those left out include developers of new ways of communicating copyrighted works, and, most importantly, end users. But nowadays, copyright directly affects end users in ways more pervasive than could have been expected in the analog world. If copyright law doesn't make sense to those who ...


Playing Favorites With Shareholders, Stephen J. Choi, Eric L. Talley Jan 2001

Playing Favorites With Shareholders, Stephen J. Choi, Eric L. Talley

Faculty Scholarship

Many scholars agree that a robust market for corporate control provides a critical check on managerial opportunism within public corporations. Even prior to a tender offer, the specter of a takeover provides a powerful mechanism for aligning the incentives of managers and shareholders. Conventional wisdom, therefore, views with suspicion any practice that retards the takeover threat looming over managers who perform poorly. One such practice that has garnered particular attention of late is managerial "favoritism" towards influential block shareholders. Favoritism can take any number of forms, ranging from preferential stock subscriptions, to selective information disclosure, to outright cash payments. But ...


Theorizing Yes: An Essay On Feminism, Law, And Desire, Katherine M. Franke Jan 2001

Theorizing Yes: An Essay On Feminism, Law, And Desire, Katherine M. Franke

Faculty Scholarship

In this Essay, Professor Franke observes that, unlike feminists from other disciplines, feminist legal theorists have neglected to formulate a positive theory of female sexuality. Instead, discussions of female sexuality have been framed as either a matter of dependency or danger. Professor Franke begins her challenge to this scheme by asking why legal feminism has accepted unquestionably the fact that most women reproduce in their lifetimes. Why have not social forces that incentivize motherhood – a dynamic she terms repronormativity – been exposed to as exacting a feminist critique as have heteronormative forces that normalize heterosexuality? Furthermore, she continues by noting that ...


Moral Pluck: Legal Ethics In Popular Culture, William H. Simon Jan 2001

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 "Conformist Moralism" exemplified by the official ethics of the American bar and the arguments of the proponents of President Clinton's impeachment. While Conformist 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 ...


Is Article 2 The Best We Can Do?, Robert E. Scott Jan 2001

Is Article 2 The Best We Can Do?, Robert E. Scott

Faculty Scholarship

You will all be happy to know that, haying listened to my colleagues for the last three hours, I have completely forgotten what I was planning to say. But I haven't forgotten why I am here. I am the proverbial skunk at the garden party, and I hope to fulfill my role as the only skeptic in the group. I must tell you candidly, however, that I agree with everything Gail Hillebrand had to say. That doesn't mean she is going to agree with anything that I have to say, but perhaps there are two skeptics here this ...


Judicial Review Under Seqra: A Statistical Study, Michael B. Gerrard Jan 2001

Judicial Review Under Seqra: A Statistical Study, Michael B. Gerrard

Faculty Scholarship

Nearly 2000 judicial opinions were issued under the State Environmental Quality Review Act ("SEQRA") between its enactment in 1975 and the end of 2000. Almost 700 were issued from 1990 (when the author began undertaking an annual review of SEQRA cases for the New York Law Journal) through 2000. These numbers are large enough to serve as a basis for a statistically valid review of case outcomes.

This article is divided into five parts. Part I presents statistics on the SEQRA cases. Part II reviews the history of how the Court of Appeals has decided SEQRA cases. Part III lists ...


Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault Jan 2001

Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault

Faculty Scholarship

In Nixon v. Shrink Missouri Government PAC, the Supreme Court emphatically reaffirmed a key element of the campaign finance doctrine first articulated in Buckley v. Valeo a quarter-century earlier that governments may, consistent with the First Amendment, impose limitations on the size of contributions to election campaigns. Shrink Missouri was significant because the Eighth Circuit decision reversed by the Supreme Court had sought to strengthen the constitutional protection provided to contributions and had invalidated limitations on donations to Missouri state candidates that were actually higher than the limits on donations to federal candidates that the Supreme Court had previously upheld ...


Do Norms Matter?: A Cross-Country Examination Of The Private Benefits Of Control, John C. Coffee Jr. Jan 2001

Do Norms Matter?: A Cross-Country Examination Of The Private Benefits Of Control, John C. Coffee Jr.

Faculty Scholarship

Recent empirical work has found that the private benefits of control differ significantly depending upon the underlying legal system in which the firm is incorporated. In particular, common law systems appear to outperform French civil law systems, but are trumped in turn by Scandinavian civil law systems. This evidence could be read to support the "law matters" thesis first advanced by Professors LaPorta, Lopez-de-Silanes, Shleifer and Vishny, which finds that "common law" legal systems incorporate superior legal protections for minority shareholders and therefore have deeper capital markets and more dispersed ownership. But the apparent superiority of Scandinavian legal systems complicates ...


Credit Cards And Debit Cards In The United States And Japan, Ronald J. Mann Jan 2001

Credit Cards And Debit Cards In The United States And Japan, Ronald J. Mann

Faculty Scholarship

This article is an exploration in the tradition of new institutional economics of the possibility that institutional conditions have a significant role in determining the success of credit cards and debit cards. The article examines differences in credit-card and debit-card usage between the United States and Japan. Although I do not doubt that social and psychological factors have some significance, I contend that three institutional factors also have useful explanatory power: the freedom of banks to enter the industry; low telecommunication costs, and the size of the market.

The article provides a detailed description of card usage in the two ...


The Rise Of Dispersed Ownership: The Roles Of Law And The State In The Separation Of Ownership And Control, John C. Coffee Jr. Jan 2001

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

Faculty Scholarship

Recent scholarship on comparative corporate governance has produced a puzzle. While Berle and Means had assumed that all large public corporations would mature to an end-stage capital structure characterized by the separation of ownership and control, the contemporary empirical evidence is decidedly to the contrary. Instead of convergence toward a single capital structure, the twentieth century saw the polarization of corporate structure between two rival systems of corporate governance:

  1. A Dispersed Ownership System, characterized by strong securities markets, rigorous disclosure standards, and high market transparency, in which the market for corporate control constitutes the ultimate disciplinary mechanism; and
  2. A Concentrated ...


The Liberal Commons, Hanoch Dagan, Michael A. Heller Jan 2001

The Liberal Commons, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline – there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led ...


Lucas Rosa V. Park West Bank And Trust Company, Katherine M. Franke Jan 2001

Lucas Rosa V. Park West Bank And Trust Company, Katherine M. Franke

Faculty Scholarship

In July of 1998 something rather mundane happened: Lucas Rosa walked into Park West Bank in Holyoke, Massachusetts and asked for a loan application. Since it was a warm summer day, and because she wanted to look credit-worthy, Rosa wore a blousey top over stockings. Suddenly, the mundane transformed into the exceptional: When asked for some identification, Rosa was told that no application would be forthcoming until and unless she went home, changed her clothes and returned attired in more traditionally masculine/male clothing. Rosa, a biological male who identifies herself as female was, it seems, denied a loan application ...


Joel Feinberg On Crime And Punishment: Exploring The Relationship Between The Moral Limits Of The Criminal Law And The Expressive Function Of Punishment, Bernard Harcourt Jan 2001

Joel Feinberg On Crime And Punishment: Exploring The Relationship Between The Moral Limits Of The Criminal Law And The Expressive Function Of Punishment, Bernard Harcourt

Faculty Scholarship

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest inexpressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg's essay. As Carol Steiker observes, "Joel Feinberg can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay ...


Divorce, Children's Welfare, And The Culture Wars, Elizabeth S. Scott Jan 2001

Divorce, Children's Welfare, And The Culture Wars, Elizabeth S. Scott

Faculty Scholarship

Are children harmed when their parents divorce? If so, should parents' freedom to end marriage be restricted? These questions have generated uncertainty and controversy in the decades since legal restraints on divorce have been lifted. During the 1970s and 80s, the traditional conviction that parents should stay together "for the sake of the children" was supplanted by a view that children are usually better off if their unhappy parents divorce. By this account, divorcing parents should simply try to accomplish the change in status with as little disruption to their children's lives as possible. This stance has been challenged ...


"Project Exile" And The Allocation Of Federal Law Enforcement Authority, Daniel Richman Jan 2001

"Project Exile" And The Allocation Of Federal Law Enforcement Authority, Daniel Richman

Faculty Scholarship

With each report of violent crime statistics (whether rising or falling) or of the latest firearms outrage, we hear the antiphony of the gun control debate. Advocates of increased federal regulation decry the inadequacies of a regime that permits relatively free access to firearms and argue that the availability of guns is itself a spur to more deadly violence. Advocates of minimal regulation, for their part, condemn measures that, they say, will primarily penalize law-abiding citizens, and instead call for more vigorous enforcement of existing laws, targeting "criminals," not their weapons. When the antiphony intrudes on funerals, the effect can ...


From The White Paper To The Proposal For A Council Regulation, Petros C. Mavroidis, Damien J. Neven Jan 2001

From The White Paper To The Proposal For A Council Regulation, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This Paper analyses how the network of enforcers envisaged in the Proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty (September 2000) would operate. We identify four issues. First, we observe that the Proposal (unlike the White Paper) includes safeguards to avoid a shift of competence in favour of national competition laws, which may be questionable in terms of subsidiarity. Second, we recognise that the accountability of antitrust authorities might vary across the members of the network, so that, for instance, some authorities may be ...


Fear And Loathing Of Politics In The Legal Academy, William H. Simon Jan 2001

Fear And Loathing Of Politics In The Legal Academy, William H. Simon

Faculty Scholarship

In a recent lament about Bush v. Gore, Bruce Ackerman feared that the patent groundlessness of the opinion would convince many of a proposition he attributed to critical legal studies: that law is simply a form of politics.

This remark reflects two tendencies prominent at the Yale Law School in recent years: first, a preoccupation with a now extinct and never very successful movement of left legal academics, and second, a tendency to conflate this movement with the legal conservatism of Jusice Scalia and his collaborators at the University of Chicago and the Rehnquist Court.

These tendencies ride high throughout ...


Sales And Elections As Methods For Transferring Corporate Control, Ronald J. Gilson, Alan Schwartz Jan 2001

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

Faculty Scholarship

Delaware case law has rendered the tender offer obsolete as a method for purchasing a company whose directors oppose the acquisition. A potential acquirer facing target opposition today must run an insurgent director slate, in the expectation that its directors are more likely to sell. The Delaware courts have not justified their preference for elections over markets as the preferred vehicle for implementing changes in control. Informal scholarly analyses ask transaction cost questions, such as whether proxy contests are more costly than takeovers. This article attempts to break new ground by asking whether there are systematic differences in the performance ...


Reflections On Environmental Justice, Michael B. Gerrard Jan 2001

Reflections On Environmental Justice, Michael B. Gerrard

Faculty Scholarship

Environmental justice is a very hot topic. Yesterday's New York Times on the front page of the Metropolitan section had a story stating: Mid-Sized Plants Headed to Poor Areas. The story stated, "The Pataki administration acknowledges in its own study that the electric generators that it wants to install around New York City would go into poor heavily minority communities, a finding that supports some of the arguments of the project's opponents. This is quoting an unreleased environmental justice analysis that may or may not be valid, but it certainly shows how hot a topic it is. This ...


Remarks At Memorial Service For Professor Kellis E. Parker, Kendall Thomas Jan 2001

Remarks At Memorial Service For Professor Kellis E. Parker, Kendall Thomas

Faculty Scholarship

Seventeen years ago, I came to New York and Columbia University to begin a career in the legal academy. Seventeen years ago, I met Kellis Parker. The two moments run together in my mind, quite simply because my life in New York and at Columbia are inseparable from my relationship with Kellis Parker. If I had the time, I'd stand here and testify. I'd testify about the man who was my colleague, my mentor, my model, and my big-brother-in-the-law. I'd testify about the Kellis Parker who was my careful and generous critic. If I had time, I ...


Restrictive Covenants, Employee Training, And The Limits Of Transaction-Cost Analysis, Gillian Lester Jan 2001

Restrictive Covenants, Employee Training, And The Limits Of Transaction-Cost Analysis, Gillian Lester

Faculty Scholarship

Restrictive covenants are an increasingly common feature of employment, used across a wide range of industries, occupations, and employees. In its most common form, a restrictive covenant prohibits an employee from competing with the employer within a certain geographic area fora specified period of time after departure, usually one or two years. Sometimes these clauses are drawn more narrowly, proscribing specific activities such as continued dealings with former customers. Regardless of scope, the typical remedy when an employee breaches such a covenant is injunctive relief.

A substantial literature within law and economics debates the merits of restrictive covenants from an ...


Unemployment Insurance And Wealth Redistribution, Gillian Lester Jan 2001

Unemployment Insurance And Wealth Redistribution, Gillian Lester

Faculty Scholarship

This Article evaluates the merit of liberalizing unemployment insurance eligibility as a means to achieve progressive wealth redistribution-an idea that has recently gained popularity among policymakers and legal scholars. Unemployment insurance (UI) provides temporary, partial wage replacement to workers who suffer unexpected job loss, but it tends to exclude workers who have very low wages or hours of work, or who quit for reasons considered "personal" (for example, to accommodate family demands). Professor Lester argues that while redistribution to workers who are poor or who have caregiving obligations is a desirable goal, expanding UI is a poor way to do ...


The Ali And The Ucc, Lance Liebman Jan 2001

The Ali And The Ucc, Lance Liebman

Faculty Scholarship

No abstract provided.


Clean Air, Clean Processes? The Struggle Over Air Pollution Law In The People's Republic Of China, William P. Alford, Benjamin L. Liebman Jan 2001

Clean Air, Clean Processes? The Struggle Over Air Pollution Law In The People's Republic Of China, William P. Alford, Benjamin L. Liebman

Faculty Scholarship

This Article commences in Part I by introducing law-making in China before reconstructing the drafting process and attendant political battles leading up to the revision of China's principal air pollution law in 1995 – which, as Ackerman and Hassler observed with reference to the United States, can be every bit as messy as the soiled air such efforts are intended to address. Part II then examines the institutional factors that ultimately are critical to an understanding of why the 1995 APPCL, as promulgated, fell well short of its original authors' objectives but set in motion a process that over time ...


Litigation Governance: A Gentle Critique Of The Third Circuit Task Force Report, John C. Coffee Jr. Jan 2001

Litigation Governance: A Gentle Critique Of The Third Circuit Task Force Report, John C. Coffee Jr.

Faculty Scholarship

The Third Circuit Task Force on the Selection of Class Counsel (the "Task Force") has worked hard, considered everything, and exhaustively summarized the problems associated with class counsel auctions. Its views will undoubtedly resonate with most of the Bench and the vast majority of the Bar-neither of whom were enthusiastic about the prospect of auctions in the first place. Personally, I agree with the Task Force that auctions are not the most promising reform and that they may exacerbate, rather than correct, existing problems. Still, what is missing from the Task Force Report is the candid recognition that the agency ...


Tax Constraints On Indexed Options, David M. Schizer Jan 2001

Tax Constraints On Indexed Options, David M. Schizer

Faculty Scholarship

Indexed stock option grants reward executives for outperforming a benchmark, such as the market as a whole or competitors in the same industry. These options offer superior incentives by diminishing the influence of factors beyond an executive's control, such as general market and industry conditions. Yet indexed options are almost never used. Professor Saul Levmore seeks to explain this puzzle with norms. The main point of this comment on his Article is that tax plays a larger role in this puzzle than Professor Levmore acknowledges, although tax is not a complete explanation. The tax appeal of traditional options is ...


The Role And Reality Of Emotions In Law, Carol Sanger Jan 2001

The Role And Reality Of Emotions In Law, Carol Sanger

Faculty Scholarship

It is a great pleasure to participate in the celebration and exploration of Susan Bandes' The Passions of Law in this symposium on emotion and gender jurisprudence. It may be worth reminding today's law students that when Professor Bandes and I were classmates at the University of Michigan Law School in the mid-1970s, there were no such conferences. Jurisprudence existed, but the concept of gender had not yet emerged; we were still too busy defining feminism. Emotions were something we dutifully suppressed as we tried to assimilate into the legal profession.

This is not to say we were wholly ...


The Methodological Commitments Of Contemporary Contract Theory, Jody S. Kraus Jan 2001

The Methodological Commitments Of Contemporary Contract Theory, Jody S. Kraus

Faculty Scholarship

Autonomy and economic theories of contract seem to provide incompatible accounts of contract law. In this Chapter, I argue that what appear to be first-order disagreements over particular contract doctrines are really implicit second-order disagreements reflecting the divergent methodological commitments of autonomy and economic theories. I argue that autonomy theories accord priority to the normative project of justifying existing contract doctrine, treat contract law as consisting in the plain meaning of doctrine, require contract theory to explain the distinctive character of contract law, and take the ex post perspective in adjudication. In contrast, economic theories accord priority to the positive ...


The Acquiescent Gatekeeper: Reputational Intermediaries, Auditor Independence And The Governance Of Accounting, John C. Coffee Jr. Jan 2001

The Acquiescent Gatekeeper: Reputational Intermediaries, Auditor Independence And The Governance Of Accounting, John C. Coffee Jr.

Faculty Scholarship

The role of "gatekeepers" as reputational intermediaries who can be more easily deterred than the principals they serve has been developed in theory, but less often examined in practice. Initially, this article seeks to define the conditions under which gatekeeper liability is likely to work – and, correspondingly, the conditions under which it is more likely to fail. Then, after reviewing the recent empirical literature on earnings management, it concludes that the independent auditor does not today satisfy the conditions under which gatekeeper liability should produce high law compliance. A variety of explanations – poor observability, implicit collusion, and high agency costs ...