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Articles 1 - 8 of 8

Full-Text Articles in Law

Locating Innovation: The Endogeneity Of Technology, Organizational Structure, And Financial Contracting, Ronald J. Gilson Jan 2010

Locating Innovation: The Endogeneity Of Technology, Organizational Structure, And Financial Contracting, Ronald J. Gilson

Faculty Scholarship

There is much we do not understand about the "location" of innovation: the confluence, for a particular innovation, of the technology associated with the innovation; the innovating firm's size and organizational structure; and the financial contracting that supports the innovation. This Essay suggests that these three indicia are determined simultaneously and discusses the interaction among them through four examples of innovative activity whose location is characterized by tradeoffs between pursuing the activity in an established company, in a smaller, earlier-stage company, or some combination of the two. It first considers the dilemma faced by an established company in deciding ...


The Disposing Power Of The Literature, Thomas W. Merrill Jan 2010

The Disposing Power Of The Literature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type of ...


Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger Jan 2010

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking ...


Judicial Elections As Popular Constitutionalism, David E. Pozen Jan 2010

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich ...


Braiding: The Interaction Of Formal And Informal Contracting In Theory, Practice, And Doctrine, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott Jan 2010

Braiding: The Interaction Of Formal And Informal Contracting In Theory, Practice, And Doctrine, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Faculty Scholarship

This Article studies the relationship between formal and informal contract enforcement. The theoretical literature treats the two strategies as separate phenomena. By contrast, a rich experimental literature considers whether the introduction of formal contracting and state enforcement "crowds out" the operation of informal contracting. Both literatures focus too narrowly on how formal contracts create incentives for parties to perfom substantive actions, while assuming that informal enforcement depends on preexisting levels of trust. As a result, current scholarship misses the relationship between formal and informal contract mechanisms that characterizes contemporary contracting in practice. Parties respond to rising uncertainty by writing contracts ...


Embedded International Law And The Constitution Abroad, Sarah H. Cleveland Jan 2010

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal ...


Litigation Governance: Taking Accountability Seriously, John C. Coffee Jr. Jan 2010

Litigation Governance: Taking Accountability Seriously, John C. Coffee Jr.

Faculty Scholarship

Both Europe and the United States are rethinking their approach to aggregate litigation. In the United States, class actions have long been organized around an entrepreneurial model that uses economic incentives to align the interest of the class attorney with those of the class. But increasingly, potential class members are preferring exit to voice, suggesting that the advantages of the U.S. model may have been overstated. In contrast, Europe has long resisted the United States's entrepreneurial model, and the contemporary debate in Europe centers on whether certain elements of the U.S. model – namely, opt-out class actions, contingent ...


Supremacy Clause Textualism, Henry Paul Monaghan Jan 2010

Supremacy Clause Textualism, Henry Paul Monaghan

Faculty Scholarship

Whatever its status in the statutory interpretation "wars," originalism-driven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism", that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of ...