Law Commons^™

Old Chief V. United States: Stipulating Away Prosecutorial Accountability?, Daniel Richman

Faculty Scholarship

Earlier this year, in Old Chief v. United States, the Supreme Court finally resolved a circuit split on a nagging evidentiary issue: When a defendant charged with being a convicted felon in possession of a firearm offers to satisfy one of the statute's elements by stipulating to the existence of a prior felony conviction, may the government decline the stipulation and prove the existence and the nature of that prior felony?

The question of evidence law resolved in Old Chief is not particularly earth-shattering. Indeed, while the Court divided five to four on the issue, neither Justice Souter's opinion …

Parents As Fiduciaries, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

Traditionally, the law has deferred to the rights of biological parents in regulating the parent-child relationship. More recently, as the emphasis of legal regulation has shifted to protecting children's interests, critics have targeted the traditional focus on parents' rights as impeding the goal of promoting children's welfare. Some contemporary scholars argue instead for a "child-centered perspective," in contrast to the current regime under which biological parents continue to have important legal interests in their relationship with their children. The underlying assumption of this claim is that the rights of parents and the interests of children often are conflicting, and that …

Foreword To Tributes, Robert E. Scott

Faculty Scholarship

Seldom does an institution experience the jolt of four revered and beloved members of the faculty choosing to retire at the same time. When it does occur, as it has this year at the University of Virginia, the sense of loss can be overwhelming. John Hetheringon, John McCoid, Dan Meador and Cal Woodard have been members of this Law Faculty for a combined period of 123 years.T hey embody a collective source of talent, energy, wisdom, and skill as teachers and scholars that is, quite literally, irreplaceable.

The Politics Of Article 9, Robert E. Scott

Faculty Scholarship

In the ongoing debate concerning the efficiency and social value of Article 9 of the Uniform Commercial Code, two points are beyond dispute. First, asset-based financing has undergone an enormous transformation since the enactment of Article 9. The most vivid illustration of this is the dramatic increase in the number and size of firms that rely on secured credit as their principal means of financing both ongoing operations and growth opportunities. Previously, with a few exceptions (such as factoring and trust receipts), secured financing principally had served second-class markets as the "poor man's" means of obtaining credit. Now, it has …

Toward A New Deal Legal History, Eben Moglen

Faculty Scholarship

With this article, Barry Cushman continues the project begun in earlier writings, leading ultimately to a thoroughgoing reconsideration of the legal history of the New Deal. The present work, perhaps the most important to appear so far, brings Cushman's evolving argument up against the most stable – if not altogether the most convincing – element of the traditional history of the New Deal Court. The "Constitutional Revolution of 1937" is now open for reconsideration or, more precisely, the famous "switch in time" that realigned the Supreme Court with the demands of the Roosevelt administration. Cushman argues powerfully – by and …

The Eclipse Of Reason: A Rhetorical Reading Of Bowers V. Hardwick, Kendall Thomas

Faculty Scholarship

In a careful and compelling reading of the text of the Supreme Court's opinion in Bowers v. Hardwick, Janet Halley provides a meticulous map of the misprisions by which the Hardwick Court "exploit[s] confusion about what sodomy is in ways that create opportunities for the [judicial] exercise of homophobic power." According to Professor Halley, the duplicitous mechanisms the Hardwick Court marshals in reasoning about sodomy entail a mobilization of two "incommensurable articulations": the idea of the sodomitical act, on the one hand, and that of personal identity, on the other.

Professor Halley rightly insists that an anti-homophobic critique …

Getting It Right, Robert E. Scott

Faculty Scholarship

Writing a tribute for any beloved colleague who is retiring is a difficult experience. Writing about Tom Bergin, who is retiring after twenty-nine years at the Law School, is an even greater challenge. The challenge stems from Tom's legacy to his students and to his colleagues at the Law School; both the challenge and the legacy require some explanation.

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

Rational Decisionmaking About Marriage And Divorce, Elizabeth S. Scott

Faculty Scholarship

The apparent normative goal of modem divorce law is the efficient termination of unsuccessful marriages. Once the couple (or either party) determine that the marriage is no longer satisfactory, then quick and easy exit is deemed desirable. As Carl Schneider suggests, the law has withdrawn from moral discourse about divorce, adopting a neutral stance toward marital dissolution. Although divorce typically imposes formidable psychological and economic costs, there are few legal incentives to remain married, or even to consider thoughtfully the decision to end the marriage. Moreover, although decisions about marriage and divorce have important legal implications, the law does nothing …

On The Nature Of Bankruptcy: An Essay Of Bankruptcy Sharing And The Creditor's Bargain, Thomas H. Jackson, Robert E. Scott

Faculty Scholarship

Finance theorists have long recognized that bankruptcy is a key component in any general theory of the capital structure of business entities. Legal theorists have been similarly sensitive to the substantial allocational and distributional effects of the bankruptcy law. Nevertheless, until recently, underlying justifications for the bankruptcy process have not been widely studied. Bankruptcy scholars have been content to recite, without critical analysis, the two normative objectives of bankruptcy: rehabilitation of overburdened debtors and equality of treatment for creditors and other claimants.

The developing academic interest in legal theory has spurred a corresponding interest in expanding the theoretical foundations of …

Foreign States And The Constitution, Lori Fisler Damrosch

Faculty Scholarship

This article does not advocate judicial abstention from deciding the constitutional claims of foreign sovereigns. Rather, the argument is that constitutional claims against the actions of the federal political branches must fail on the merits because of the relationship of foreign states to the federal structure. When, on the other hand, a claim does not directly confront or conflict with the political branches' foreign policy, the federal courts should adjudicate the merits of foreign state claims by applying constitutional jurisprudence to sustain or reject the claim. Part III of this article elaborates upon the relationship between the thesis in Part …

Evaluating Dual Class Common Stock: The Relevance Of Substitutes, Ronald J. Gilson

Faculty Scholarship

The proposal of the New York Stock Exchange to end its prohibition on listing the securities of companies with dual classes of common stock has focused public policy debate over this evolution in capital structure both too broadly and too narrowly.

The debate has been too broad because it has encompassed one situation – an initial public offering by a company with a capital structure containing dual class common stock – that should not be controversial at all. Whatever may have originally prompted the New York Stock Exchange's longstanding prohibition against listing non-voting common stock or common stock with voting …

The Mechanisms Of Market Efficiency, Ronald J. Gilson

Faculty Scholarship

Of all recent developments in financial economics, the efficient capital market hypothesis ("ECMH") has achieved the widest acceptance by the legal culture. It now commonly informs the academic literature on a variety of topics; it is addressed by major law school casebooks and textbooks on business law; it structures debate over the future of securities regulation both within and without the Securities and Exchange Commission; it has served as the intellectual premise for a major revision of the disclosure system administered by the Commission; and it has even begun to influence judicial decisions and the actual practice of law. In …

Market Failure And The Economic Case For A Mandatory Disclosure System, John C. Coffee Jr.

Faculty Scholarship

Recent academic commentary on the securities laws has much in common with the battles fought in historiography over the origins of the First World War. The same progression of phases is evident. First, there is an orthodox school, which tends to see historical events largely as a moral drama of good against evil. Next come the revisionists, debunking all and explaining that the good guys were actually the bad. Eventually, a new wave of more professional, craftsmanlike scholars arrives on the scene to correct the gross overstatements of the revisionists and produce a more balanced, if problematic, assessment.

Shelf Registration, Integrated Disclosure, And Underwriter Due Diligence: An Economic Analysis, Merritt B. Fox

Faculty Scholarship

In a recent article, Professor Barbara Banoff mounted a spirited defense of the Securities and Exchange Commission's decision to adopt permanently Rule 415 under the Securities Act of 1933 (Securities Act). Rule 415 permits the registration of securities that an issuer intends to "put on the shelf'' rather than sell immediately. By having a block of "shelf registered" securities available, an issuer avoids the delay of the registration process once the decision is made to proceed with a sale. Shelf registration also gives an issuer the flexibility to seek bids from a group of competing underwriters and bypasses the traditional …

The Mitigation Principle: Toward A General Theory Of Contractual Obligation, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

The duty to mitigate is a universally accepted principle of contract law requiring that each party exert reasonable efforts to minimize losses whenever intervening events impede contractual objectives. Although applications of the mitigation principle pervade the specific rules of contract, it is startling how many questions remain unanswered as to precisely what efforts the mitigation duty requires and what point in time the obligation arises. For example, under what circumstances does mitigation require an injured party to deal with the contract breacher? Why does the duty to minimize losses mature only after the breach, even if the injured party became …

Authority And Consent, Joseph Raz

Faculty Scholarship

My starting point is the assumption that there is no general obligation to obey the law, not even a prima facie obligation and not even in a just society. This assumption is perhaps becoming more popular. In recent years it has been defended by several writers. There is more that needs to be said in its support, but I will not attempt to do so here. Instead, I will reflect on a problem posed by accepting it, a problem concerning the relations between an individual citizen and the state. It is common to think that the state has authority over …

Principles Of Relational Contracts, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

Recent scholarship has demonstrated that a significant proportion of private contracts do not easily fit the presuppositions of classical legal analysis. One reason for this is the pivotal role played in conventional legal theory by the concept of the complete contingent contract. Parties in a bargaining situation are presumed able, at minimal cost, to allocate explicitly the risks that future contingencies may cause one or the other to regret having entered into an executory agreement. Under these conditions, the role of legal regulation can be defined quite precisely. Once the underlying rules policing the bargaining process have been specified, contract …

Monrad Paulsen And The Idea Of A University Law School, Michael J. Graetz, Charles H. Whitebread Ii

Faculty Scholarship

Monrad Paulsen played a very special role in both of our lives. He was our friend and our first dean, and we will likely remember no future dean with the same affection, loyalty, and admiration. Monrad knew when to encourage and when to criticize, and he used his knowledge and the force of his personality to help launch both of us in the academic profession. He was, however, more to us than friend, supporter, and critic: our views about legal education were, in important and permanent ways, shaped by Monrad Paulsen.

Central to Monrad's view of legal education was his …

Conflicts Of Law And Morality – Institutions Of Amelioration, Kent Greenawalt

Faculty Scholarship

In his rich, intricate, and wise examination of themes from the Crito, A. D. Woozley explores Socrates' proposal, put in the mouth of the personified laws of Athens, that the duty of a citizen is to obey a law or to persuade society that the law is wrong. If this position is understood to permit disobedience and attempted persuasion after a law is adopted, one of its implications is that on some occasions when people intentionally break the law, those who administer the law may properly decline to impose the stipulated punishment, because they believe that disobedience was justified. Suggesting …

Monrad Paulsen: An Affectionate Appreciation, Michael I. Sovern

Faculty Scholarship

I have been an admirer of Monrad Paulsen since my first days as his junior colleague at the University of Minnesota Law School back in 1955. In retrospect, I recognize that my view of what makes a great law professor was profoundly influenced by the qualities I saw, and respected, in Monrad. For me, they began with collegiality – a personal interest in and a professional commitment to the welfare of the new boy. That first year at Minnesota was an enormously happy and productive apprenticeship for me, and Monrad helped make it so.

Beyond The Shut-Eyed Sentry: Toward A Theoretical View Of Corporate Misconduct And An Effective Legal Response, John C. Coffee Jr.

Faculty Scholarship

Like hard cases, festering scandals make bad law. As public perceptions shift so that conduct once tolerated becomes seen as illicit, political pressures develop that can result in hastily improvised responses by the legal system to fill the newly perceived vacuum. This generalization is advanced to question neither the inalienable right of the public to be scandalized, nor the need for corporate reform, but to approach a highly problematic dilemma: hurried, moralistic responses to a perceived evil often prove not only ineffective, but even counterproductive. The serious student of complex organizations may recognize this assertion as a slightly altered variant …

Constitutional Regulation Of Provisional Creditor Remedies: The Cost Of Procedural Due Process, Robert E. Scott

Faculty Scholarship

In recent years a series of Supreme Court decisions has purported to envelop the rights of defaulting debtors in an enlarged concept of procedural due process. The central theme underlying this development is clearly an attempt by the Court to impose some degree of constitutional control on the exercise of provisional creditor remedies. The path that leads from Sniadach v. Family Finance Corp. to North Georgia Finishing, Inc. v. Di-Chem, Inc., is however, far from clear and the cases have provoked serious questioning of the meaning and impact of this doctrine. Due process as reflected in Sniadach and Fuentes …

Taxation Of Unrealized Gains At Death – An Evaluation Of The Current Proposals, Michael J. Graetz

Faculty Scholarship

The failure to tax the appreciation of capital assets transferred at death has been described as the major shortcoming of existing federal income tax laws. From time to time since 1942, the Department of the Treasury and others have urged alteration of the rule which underlies this failure. Recently the House Ways and Means Committee held panel discussions and public hearings on the subject of tax reform during which consideration was given to the possibility of changing the laws dealing with taxation of appreciated property at death. In its recommendations to the Committee, the Treasury Department did not push for …

Reflections On The Tax Legislative Process: Prelude To Reform, Michael J. Graetz

Faculty Scholarship

Tax reform is one of those motherhood issues-everybody's for it. Election year 1972 generated many far-reaching tax reform proposals which, if enacted, would have a profound impact on virtually every segment of American society. Senator McGovern recommended taxing capital gains at the same rates as ordinary income, eliminating almost $7 billion granted to businesses by reducing the investment tax credit and depreciation allowances, and offering state and local governments a 50 percent interest subsidy to encourage them to issue taxable, rather than tax-exempt, bonds. In addition, he proposed eliminating the percentage depletion allowance and the deduction for intangible drilling expenses …

The Truth-In-Negotiations Act – An Examination Of Defective Pricing In Government Contracts, Michael J. Graetz

Faculty Scholarship

Charges of excessive profitmaking on government contracts have issued from the Senate floor and the nation's press and have provided the impetus for recent congressional investigations and proposals for remedial legislation. Profiteering by government contractors is a problem of potentially enormous dimensions since purchases by the federal government total more than seventy-seven billion dollars – over ten per cent of the gross national product. Because the greatest part of these purchases are made by the Department of Defense, congressional action aimed at minimizing excessive profits has focused upon Defense Department procurement activities under the Armed Services Procurement Act (ASPA).