Law Commons^™

The Texture Of Loyalty, Deborah A. Demott

Faculty Scholarship

This paper examines whether and how reforms in corporate governance structures and practices in the United States may reshape conventional notions of the fiduciary duties owed by independent directors of public companies. The paper identifies two focal points for the evolution of directors' fiduciary duties. First, various reforms in corporate governance assign more specific responsibilities to directors, arguably reorienting directors' loyalty to due discharge of a specified function along with ongoing or residual duties of loyalty owed in more general terms to the corporation and its shareholders. The relationships among these specific duties and more general ones may be complex, …

Welfare Polls: A Synthesis, Matthew D. Adler

Faculty Scholarship

"Welfare polls" are survey instruments that seek to quantify the determinants of human well-being. Currently, three welfare polling formats are dominant: contingent valuation (CV) surveys, quality-adjusted life year (QALY) surveys, and happiness surveys. Each format has generated a large, specialized, scholarly literature, but no comprehensive discussion of welfare polling as a general enterprise exists.This Article seeks to fill that gap.

Part I describes the trio of existing formats. Part II discusses the current and potential uses of welfare polls in governmental decisionmaking. Part III analyzes in detail the obstacles that welfare polls must overcome to provide useful well-being information, and …

The Functional Method Of Comparative Law, Ralf Michaels

Faculty Scholarship

The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, "the functional method" is a trifold misnomer: There is not one ("the") functional method …

Does The Plaintiff Matter?: An Empirical Analysis Of Lead Plaintiffs In Securities Class Actions, James D. Cox, Randall S. Thomas, Dana Kiku

Faculty Scholarship

With the enactment of the Private Securities Litigation Reform Act of 1995 (PSLR) the U.S. Congress introduced sweeping substantive and procedural reforms for securities class actions. A central provision of the Act is the lead plaintiff provision, which creates a rebuttable presumption that the investor with the largest financial interest in a securities fraud class action should be appointed the lead plaintiff for the suit. The lead plaintiff provision was adopted to encourage a class member with a large financial stake to become the class representative. Congress expected that such a plaintiff would actively monitor the conduct of a securities …

Academic Freedom Issues For Academic Librarians, Richard A. Danner, Barbara Bintliff

Faculty Scholarship

Professors Danner and Bintliff argue that understanding academic freedom and faculty tenure is important for academic librarians, both to provide better perspective on the concerns of faculty researchers and teachers, and to highlight matters of common concern to librarians and faculty. The authors discuss the basic tenets of academic freedom and tenure, then compare academic freedom with the intellectual freedom concerns of librarians. The article concludes by introducing several current issues of importance to librarians, faculty, and everyone concerned with academic freedom on university campuses.

Sosa, Customary International Law, And The Continuing Relevance Of Erie, Curtis A. Bradley, Jack L. Goldsmith, David H. Moore

Faculty Scholarship

Ten years ago, the conventional wisdom among international law academics was that customary international law (CIL) had the status of self-executing federal common law to be applied by courts without any need for political branch authorization. This "modern position" came under attack by so-called "revisionist" critics who argued that CIL had the status of federal common law only in the relatively rare situations in which the Constitution or political branches authorized courts to treat it as such. Modern position proponents are now claiming that the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain confirms that CIL has the status of …

Public Symbol In Private Contract: A Case Study, Mitu Gulati, Anna Gelpern

Faculty Scholarship

This Article revisits a recent shift in standard form sovereign bond contracts to promote collective action among creditors. Major press outlets welcomed the shift as a milestone in fighting financial crises that threatened the global economy. Officials said it was a triumph of market forces. We turned to it for insights into contract change and crisis management. This article is based on our work in the sovereign debt community, including over 100 interviews with investors, lawyers, economists, and government officials. Despite the publicity surrounding contract reform, in private few participants described the substantive change as an effective response to financial …

A Field Of Green? The Past And Future Of Ecosystem Services, James Salzman

Faculty Scholarship

In recent years, interest in ecosystem services has exploded. From cover stories in the New York Times and The Economist, websites connecting buyers and sellers of ecosystem services, and the comprehensive UN-sponsored Millennium Assessment - a report on the state of the world's ecosystem services - to a statement by the U.S. Secretary of Agriculture calling for "a future where credits for clean water, greenhouse gases, or wetlands can be traded as easily as corn or soybeans," the ecosystem services approach has firmly arrived in the environmental policy world. But what does this approach entail and where is it going? …

The Players Have Lost That Argument: Doping, Drug Testing, And Collective Bargaining, Paul H. Haagen

Faculty Scholarship

No abstract provided.

A Model Mass Tort: The Ppa Experience, Francis Mcgovern, Barbara J. Rothstein, Sara Jael Dion

Faculty Scholarship

Abstract not available

A Model State Mass Tort Settlement Statute, Francis Mcgovern

Faculty Scholarship

Abstract not available

Punitive Damage Awards In Pet-Death Cases: How Do The Ratio Rules Of State Farm V. Campbell Apply?, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.

Enforcing The Avena Decision In U.S. Courts, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Contesting Anticompetitive Actions Taken In The Name Of The State: State Action Immunity And Health Care Markets, Clark C. Havighurst

Faculty Scholarship

The so-called state action doctrine is a judicially created formula for resolving conflicts between federal antitrust policy and state policies that seem to authorize conduct that antitrust law would prohibit. Against the background of recent commentaries by the federal antitrust agencies, this article reviews the doctrine and discusses it's application in the health care sector, focusing on the ability of states to immunize anticompetitive actions by state licensing and regulatory boards, hospital medical staffs, and public hospitals, as well as anticompetitive mergers and agreements. Although states are free, as sovereign governments, to restrict competition, the state action doctrine requires that …

History, Human Nature, And Property Regimes: Filling In The Civilizing Argument, Jedediah Purdy

Faculty Scholarship

Comment on Carol Rose's 2005 Childress Lecture

Ecosystem Services And The Public Trust Doctrine: Working Change From Within, James Salzman, J.B. Ruhl

Faculty Scholarship

No abstract provided.

Contract As Statute, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

Formalists contend that courts should apply strict textual analysis in interpreting contracts between sophisticated commercial parties. Sophisticated parties have the expertise and means to record their intentions in writing, reducing the litigation and uncertainty costs surrounding incomplete contracts. Moreover, to the extent courts misinterpret contracts, sophisticated parties may simply rewrite their contracts to clarify their true intent. We argue that the formalist approach imposes large costs on even sophisticated parties in the context of boilerplate contracts. Where courts make errors in interpreting boilerplate terms, parties face large collective action problems in rewriting existing boilerplate provisions. Any single party that attempts …

Legal Issues In Coalition Warfare: A U.S. Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Immigration Status And The Best Interests Of The Child Standard, Kerry Abrams

Faculty Scholarship

No abstract provided.

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …

Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr.

Faculty Scholarship

No abstract provided.