Law Commons^™

Trade, Law, And Product Complexity, Daniel Berkowitz, Johannes Moenius, Katharina Pistor

Faculty Scholarship

How does the quality of national institutions that enforce the rule of law influence international trade? Anderson and Marcouiller (2001) argue that bad institutions located in the importer's country deter international trade because they enable economic predators to steal and extort rents at the importer's border. We complement this research and show how good institutions located in the exporter's country enhance international trade, in particular, trade in complex products whose characteristics are difficult to fully specify in a contract. We argue that both exporter and importer institutions impact international as well as domestic transaction costs in complex ...

The Community Economic Development Movement, William H. Simon

Faculty Scholarship

Within a five-minute walk of the Stony Brook subway stop in the Jamaica Plain section of Boston, you can encounter the following:

• A renovated industrial site of about five acres and sixteen buildings that serves as a business incubator for small firms that receive technical assistance from the Jamaica Plain Neighborhood Development Corporation (JPNDC), a nonprofit community development corporation, which is also housed there. Known as the Brewery after its former proprietor, a beer-maker, the complex is owned by a nonprofit subsidiary of JPNDC.
• A 44,000-foot "Stop & Shop" supermarket. The market opened in 1991 after years in which the community had been without a major grocery store. It lies next to a recently renovated Community Health Center and a large high-rise public housing project. The land on which the market and health center sit was developed and is owned by a limited partnership that includes, in addition to a commercial investor, JPNDC and the Tenant Management Corporation of the housing project. Some of the income from the market and health center leases goes into a Community Benefits Trust Fund that supports job training and business development activities.
• A cluster of small, attractive multi-unit residential buildings containing a total of forty-one homes. These units were built with support from the Federal Low Income Housing Tax Credit, and they are occupied by low and moderate income families at rents limited to thirty percent of family income. The buildings are owned by a limited partnership in which the general partners are a subsidiary of JPNDC and a resident cooperative; the limited partners include five conventional business corporations and a nonprofit corporation ...

Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.

Faculty Scholarship

What do we know after Enron's implosion that we did not know before it? The conventional wisdom is that the Enron debacle reveals basic weaknesses in our contemporary system of corporate governance. Perhaps, this is so, but where is the weakness located? Under what circumstances will critical systems fail? Major debacles of historical dimensions – and Enron is surely that – tend to produce an excess of explanations. In Enron's case, the firm's strange failure is becoming a virtual Rorschach test in which each commentator can see evidence confirming what he or she already believed.

It's A Question Of Market Access, Kyle W. Bagwell, Robert W. Staiger, Petros C. Mavroidis

Faculty Scholarship

In this paper, we argue that market access issues associated with the question of the optimal mandate of the World Trade Organization should be separated from nonmarket access issues. We identify race-to-the-bottom and regulatory-chill concerns as market access issues and suggest that the WTIO should address these concerns. We then describe ways that WTO principles and procedures might be augmented to do so. As for nonmarket access issues, we argue that as a general matter these are best handled outside the WTO, and that, while implicit links might be encouraged, explicit links between the WTO and other labor and environmental ...

Racial Justice: Moral Or Political?, Kendall Thomas

Faculty Scholarship

Nearly one hundred years ago, W.E.B. DuBois predicted that the problem of the 20th century would be the problem of the color line. Were he writing today, DuBois might well conclude that in the U.S., the problem of the coming century will be the problem of the color-bind. Although Americans arguably remain "the most 'race-conscious' people on earth," our national conversation about "race" now stands at an impasse. Our ways of talking, or refusing to talk, about race increasingly speak past the racialized dilemmas of educational equity, affirmative action, poverty, welfare reform, housing, lending, labor and employment ...

Law Enforcement Under Incomplete Law: Theory And Evidence From Financial Market Regulation, Chenggang Xu, Katharina Pistor

Faculty Scholarship

This paper studies the design of law-making and law enforcement institutions based on the premise that law is inherently incomplete. Under incomplete law, law enforcement by courts may suffer from deterrence failure, defined as the social-welfare loss that results from the regime's inability to deter harmful actions. As a potential remedy a regulatory regime is introduced. The major functional difference between courts and regulators is that courts enforce law reactively, that is only once others have initiated law enforcement procedures, while regulators enforce law proactively, i.e. on their own initiative. Proactive law enforcement may be superior in preventing ...

Endowment Effects Within Corporate Agency Relationships, Jennifer H. Arlen, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

Behavioral economics is an increasingly prominent field within corporate law scholarship. A particularly noteworthy behavioral bias is the "endowment effect" – the observed differential between an individual's willingness to pay to obtain an entitlement and her willingness to accept to part with one. Should endowment effects pervade corporate contexts, they would significantly complicate much common wisdom within business law, such as the presumed optimality of ex ante agreements. Existing research, however, does not adequately address the extent to which people manifest endowment effects within agency relationships. This article presents an experimental test for endowment effects for subjects situated in an ...

Policing Guns And Youth Violence, Jeffrey A. Fagan

Faculty Scholarship

To combat the epidemic of youth gun violence in the 1980s and 1990s, law enforcement agencies across the United States adopted a variety of innovative strategies. This article presents case studies of eight cities' efforts to police gun crime. Some cities emphasized police-citizen partnerships to address youth violence, whereas others focused on aggressive enforcement against youth suspected of even minor criminal activity. Still others attempted to change youth behavior through "soft" strategies built on alternatives to arrest. Finally, some cities used a combination of approaches. Key findings discussed in this article include:

• Law enforcement agencies that emphasized police-citizen cooperation benefited ...

Social Justice Movements And Latcrit Community: On Making Social Constructionist And Anti-Essentialist Arguments In Court, Suzanne B. Goldberg

Faculty Scholarship

This article examines the difficulties associated with identity-based arguments in litigation. In particular, the article considers the ways in which anti-essentialist and social constructionist framings of identity clash with judicial preferences for fixed identity categories. I review cases in which courts have addressed anti-essentialist and social constructionist arguments (both positively and negatively) and offer preliminary hypotheses to explain the limits on courts' willingness to accept these types of arguments

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of ...

Economic Development, Competition Policy, And The World Trade Organization, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

At the recent WTO ministerial meeting in Doha, Qatar, WTO members called for the launch of negotiations on disciplines relating to competition, on the basis of explicit consensus on modalities to be agreed at the 5th WTO ministerial in 2003. Discussions in WTO since 1997 have revealed little support for ambitious multilateral action. Proponents of WTO antitrust disciplines currently propose an agreement that is limited to ‘core principles’ – nondiscrimination, transparency, and provisions banning ‘hard core’ cartels. We argue that an agreement along such lines will create compliance costs for developing countries while not addressing the anticompetitive behavior of firms located ...

The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill

Faculty Scholarship

In United States v. Mead Corp. the Supreme Court sought to prescribe a test for determining when the Chevron doctrine applies to agency interpretations of law. The Court got off to a good start, announcing that Chevron applies when Congress has delegated authority to an agency to make rules having the force of law, and the agency has adopted an interpretation pursuant to this authority. Unfortunately, the Court was less than clear about when Congress has delegated the required authority, applying a vague standard that incorporates such elements as whether Congress has directed the agency to use relatively formal procedures ...

Incomplete Law – A Conceptual And Analytical Framework And Its Application To The Evolution Of Financial Market Regulation, Katharina Pistor, Chenggang Xu

Faculty Scholarship

This paper develops a conceptual framework for the analysis of legal institutions. It argues that law is inherently incomplete and that the incompleteness of law has a profound impact on the design of lawmaking and law enforcement institutions. When law is incomplete, residual lawmaking powers must be allocated; and enforcement agents have to be vested with law enforcement powers. The optimal allocation of lawmaking and law enforcement powers under incomplete law is analyzed with a focus on the legislature, regulators and courts as possible lawmakers, and courts as well as regulators as possible law enforcers. The timing and process of ...

Thirteen Ways Of Looking At The Law, Bert I. Huang

Faculty Scholarship

I was of three minds
Like a tree
In which there are three blackbirds.

The emergence of external disciplines within legal scholarship seems to have fractured its intellectual focus. Technical and specialized academic writing, moreover, appears to be drifting ever farther from the theaters of legal action. Judge Richard Posner's latest book of essays, Frontiers of Legal Theory, challenges such perceptions: Even as it celebrates the breadth of interdisciplinary legal scholarship, it seeks coherence among myriad methodologies. Even as it delights in the abstract constructs of social science, it emphasizes their practical impact. And as one might expect of ...

The Preventive Effects Of Arrest On Intimate Partner Violence: Research, Policy And Theory, Christopher D. Maxwell, Joel H. Garner, Jeffrey A. Fagan

Faculty Scholarship

This research addresses the limitations of prior analyses and reviews of five experiments testing for the specific deterrent effect of arrest on intimate partner violence by applying to individual level data consistent eligibility criteria, common independent and outcome measures, and appropriate statistical tests. Based on 4,032 cases involving adult males who assaulted their female intimate partners, multivariate regression analyses show consistent but modest reductions in subsequent offenses targeting the original victim that is attributable to arresting the suspect. Although the reductions attributable to arrest are similar across all five studies, other factors, such as the suspect's prior arrest ...

The Demsetz Thesis And The Evolution Of Property Rights, Thomas W. Merrill

Faculty Scholarship

Both conventional price theory and standard economic accounts of tort and contract law assume fixed property rights. In fact, however, property regimes are not static but change over time. Given the assumption of fixed property that otherwise prevails in economic literature, explaining the evolution of property rights is one of the great challenges for the economic analysis of law.

The point of departure for virtually all efforts to explain changes in property rights is Harold Demsetz’s path‐breaking article, “Toward a Theory of Property Rights.” The article is still widely cited and reproduced, especially in first‐year property courses ...

Illiberal Liberalism: Liberal Theology, Anti-Catholicism, & Church Property, Philip A. Hamburger

Faculty Scholarship

Liberalism has long been depicted as neutral and tolerant. Already in the eighteenth-century, when Englishmen and Americans began to develop modem conceptions of what they called "liberality," they characterized it as elevated above narrow interest and prejudice. Of course, liberality or what now is called "liberalism" can be difficult to define with precision, and there have been divergent, evolving versions of it. Nonetheless, liberalism has consistently been understood to transcend narrow self-interest or bigotry. Accordingly, many Americans have confidently believed in it as a neutral, tolerant, and even universalistic means of claiming freedom from the constraints of traditional and parochial ...

The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon

Faculty Scholarship

Literalism is the doctrine that a facially accurate but knowingly deceptive statement does not violate prohibitions of falsehood and misrepresentation. This essay argues that Literalism has had greater legitimacy in professional responsibility than in other areas of law, but that it seems to be in terminal decline. It surveys the arguments for and against Literalism and concludes that its impending demise should be welcomed.

Smart Growth And American Land Use Law, Richard Briffault

Faculty Scholarship

The smart growth movement that emerged in the late 1990's seeks to change the way Americans think about growth, development, and urban planning. From a legal perspective, smart growth directly challenges several fundamental aspects of American land use law.

Substantively, smart growth attacks two goals that have been hallmarks of American land use law for more than three-quarters of a century: (1) decongestion, that is, reducing population density and dispersing residents over wider areas; and (2) the separation of different land uses from each other. Both decongestion and separation of uses were enshrined in the Standard Zoning Enabling Act ...

Lawyers And The Practice Of Workplace Equity, Susan Sturm

Faculty Scholarship

Lawyers involved in the pursuit of workplace equity are difficult to pigeon-hole. Of course, the practice of many employment lawyers conforms to conventional understandings of lawyers' roles. These lawyers litigate cases on behalf of management or employees, advise clients about their legal rights and obligations, and define their mission as avoiding liability or winning battles in court.But innovators have crafted interesting and dynamic roles that transcend the traditional paradigm. These innovators connect law, as it is traditionally understood, to the resolution of the underlying problems that create and maintain workplace inequity. Civil rights lawyers working in both public and ...

Constructing The Practices Of Accountability And Professionalism: A Comment On In The Interests Of Justice, Susan Sturm

Faculty Scholarship

In the Interests of Justice: Reforming the Legal Profession lives up to its ambitious title. Deborah Rhode comprehensively surveys the structural problems confronting the legal profession, from its subscription to the "sporting theory of justice" to its preoccupation with profit. The book also lays bare the failure of legal education and the professional regulatory system to confront the roots of these structural problems.

I must confess that reading the book felt like a whirlwind tour of the legal profession's inevitable problems. In part, this perception grew out of the sheer range of economic, institutional, and structural factors contributing to ...

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention ...

Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intra-Client Conflict, William H. Simon

Faculty Scholarship

Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. The results have been inconsistent and often implausible. This article surveys current approaches and offers recommendations for improvement. It analyzes the distinction between "joint" representation and "entity" representation and argues that the differences between them should not be as great as conventional discussion assumes. With respect to the notion of "entity" representation, it criticizes a prominent tendency in the cases to conflate ...

The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon

Faculty Scholarship

Literalism is the doctrine that a facially accurate but knowingly deceptive statement does not violate prohibitions of falsehood and misrepresentation. This essay argues that Literalism has had greater legitimacy in professional responsibility than in other areas of law, but that it seems to be in terminal decline. It surveys the arguments for and against Literalism and concludes that its impending demise should be welcomed.

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

Since 1990, nearly every state has enacted new laws to expand the transfer adolescent offenders from juvenile to criminal courts for sentencing and punishment. What happens to adolescents once placed in the criminal justice system, the returns to crime control from these policies, and the potential violations of human rights that ensue, are the focus of this essay. The quick pace of change, the broad reach of the new laws, the potential for unintended negative outcomes, and the harsh conditions of adult punishment for juvenile offenders add new urgency to these questions. The first section discusses the tension between new ...

Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle Cooper Dreyfuss, Jane C. Ginsburg

Faculty Scholarship

This proposal is meant to spur the intellectual property bar to consider whether it would be desirable to create a regime for international enforcement of intellectual property law judgments. Such a convention could be adopted under the auspices of the World Intellectual Property Organization ("WIPO") or through the World Trade Organization ("WTO").

There are several reasons to believe that an instrument drafted specifically for intellectual property disputes would be particularly advantageous. First, for intellectual property disputes, efficiency should be a principal target. Modern distribution methods, particularly satellite and Internet transmissions, make it increasing likely that intellectual property rights will be ...

Racing Towards The Top?: The Impact Of Cross-Listings And Stock Market Competition On International Corporate Governance, John C. Coffee Jr.

Faculty Scholarship

During the 1990's, the phenomenon of cross-listing by issuers on international exchanges accelerated, with the consequence in the case of some emerging markets that trading followed, draining the original market of its liquidity. Traditionally, cross-listing has been viewed as an attempt to break down market segmentation and reach trapped pools of liquidity in distant markets. The globalization of financial markets, however, renders this explanation increasingly dated. A superior explanation is "bonding:" issuers migrate to U.S. exchanges in particular because by voluntarily subjecting themselves to the U.S.'s higher disclosure standards and greater threat of enforcement (both by ...

Understanding Enron: "It's About The Gatekeepers, Stupid", John C. Coffee Jr.

Faculty Scholarship

Debacles of historic dimensions tend to produce an excess of explanations. So has it been with Enron, as virtually every commentator has a different diagnosis and a different prescription. Yet, in most respects, Enron is a maddeningly idiosyncratic example of pathological corporate governance, which by itself cannot provide evidence of systematic governance failure. Properly understood, however, the Enron debacle furnishes a paradigm of "gatekeeper failure" – that is, of why and when reliance may not be justified on "reputational intermediaries," such as auditors, securities analysts, attorneys, and other professionals who pledge their reputational capital to vouch for information that investors cannot ...

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience ...

Educating Citizens, Peter L. Strauss

Faculty Scholarship

Socrates and his followers, the Cynics among them, put great store in educating the youths who would become the leaders of the Athenian republic. The Athenians agreed that education of their youth was of the utmost importance for their state, and executed Soc-rates for corrupting them. As I thought about how these concluding remarks could do more than cast a pale reflection of the extraordinary learning and thought that have preceded them, talking about education leapt to mind.