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The Law School Matrix: Reforming Legal Education In A Culture Of Competition And Conformity, Susan P. Sturm, Lani Guinier Jan 2007

The Law School Matrix: Reforming Legal Education In A Culture Of Competition And Conformity, Susan P. Sturm, Lani Guinier

Faculty Scholarship

The recent energy for reforming legal education focuses on curricular changes that expand students' understanding of what law is, move beyond adjudication and the courtroom, introduce broader forms of knowledge, and develop a wider range of skills. These well-intentioned and carefully analyzed programmatic initiatives may nevertheless founder because of the cultural mismatch between these proposals and the institutions they seek to change.

In this essay we argue that successful reform requires taking account of the culture of competition and conformity that permeates law schools. By culture we mean the incentive structures and peer pressure, dominant rituals and unspoken habits of ...


Controlling Family Shareholders In Developing Countries: Anchoring Relational Exchange, Ronald J. Gilson Jan 2007

Controlling Family Shareholders In Developing Countries: Anchoring Relational Exchange, Ronald J. Gilson

Faculty Scholarship

The Law and Finance account of the ubiquity of controlling shareholders in developing markets is based on conditions in the capital market: poor shareholder protection law prevents controlling shareholders from parting with control out of fear of exploitation by a new controlling shareholder who acquires a controlling position in the market. This explanation, however, does not address why we observe any minority shareholders in such markets, or why controlling shareholders in developing markets are most often family-based. This paper looks at the impact of bad law on shareholder distribution in a very different way. Developing countries typically provide not only ...


Law And Capitalism: What Corporate Crises Reveal About Legal Systems And Economic Development Around The World, Curtis J. Milhaupt, Katharina Pistor Jan 2007

Law And Capitalism: What Corporate Crises Reveal About Legal Systems And Economic Development Around The World, Curtis J. Milhaupt, Katharina Pistor

Faculty Scholarship

This book explores the relationship between legal systems and economic development by examining, through a methodology we call the institutional autopsy, a series of high profile corporate governance crises around the world over the past six years. We begin by exposing hidden assumptions in the prevailing view on the relationship between law and markets, and provide a new analytical framework for understanding this question. Our framework moves away from the canonical distinction between common law and civil law regimes. It emphasizes the constant, iterative, rolling relationship between law and markets, and suggests that how a given country's legal system ...


Timbers Of Inwood Forest, The Economics Of Rent, And The Evolving Dynamics Of Chapter 11, Edward R. Morrison Jan 2007

Timbers Of Inwood Forest, The Economics Of Rent, And The Evolving Dynamics Of Chapter 11, Edward R. Morrison

Faculty Scholarship

The Supreme Court's decision in Timbers of Inwood Forest occupies an unhappy position in bankruptcy case law. It is often remembered as a troubled interpretation of the Code, denying undersecured creditors compensation for an important source of depreciation – depreciation in the real value of a creditor's claim during a lengthy reorganization process. But Timbers was not a simple case in which a bank was denied adequate protection for lost investment opportunities. It was instead a case in which the bank tried to opt out of the bankruptcy process itself. The debtor was an apartment complex. After it entered ...


Changing Name Changing: Framing Rules And The Future Of Marital Names, Elizabeth F. Emens Jan 2007

Changing Name Changing: Framing Rules And The Future Of Marital Names, Elizabeth F. Emens

Faculty Scholarship

Marital names shape our ideas about marriage, about our children, and about our selves. For about a hundred years, American states required married women to take their husbands' names in order to engage in basic civic activities such as voting. While the law no longer requires women to change their names, it still shapes people's decisions about marital names in both formal and informal ways.

For example, the formal legal default rule in most places is that both spouses keep their premarital names. This rule is minoritarian for women, which means it imposes a range of social costs on ...


Keeping The Internet Neutral?: Tim Wu And Christopher Yoo Debate, Tim Wu, Christopher S. Yoo Jan 2007

Keeping The Internet Neutral?: Tim Wu And Christopher Yoo Debate, Tim Wu, Christopher S. Yoo

Faculty Scholarship

Network neutrality has emerged as one of the highest profile issues in telecommunications and Internet policy last year. Not only did it play a pivotal role in both houses of Congress during debates over proposed communications reform legislation; it also emerged as a key consideration during the Federal Communications Commission consideration of the recent SBC-AT&T, Verizon-MCI, and AT&T-BellSouth mergers. In the following exchange, Professors Tim Wu and Christopher Yoo engage in a lively debate over the merits of network neutrality that reviews the leading arguments on both sides of the issue.


China's Network Justice, Benjamin L. Liebman, Tim Wu Jan 2007

China's Network Justice, Benjamin L. Liebman, Tim Wu

Faculty Scholarship

This article, the product of extensive interviews across China, asks the following question: What has China's internet revolution meant for its legal system? What does cheaper if not free speech mean for Chinese judges?


Adolescence And The Regulation Of Youth Crime, Elizabeth S. Scott Jan 2007

Adolescence And The Regulation Of Youth Crime, Elizabeth S. Scott

Faculty Scholarship

Recently, American juvenile justice policy has undergone dramatic changes. In less than a generation, a justice system that viewed most lawbreakers as youngsters whose crimes were the product of immaturity has been transformed into one that often holds young offenders to the same standard of criminal accountability it imposes on adults – and generally pays little attention to differences between adolescents and adults. This essay, based on a forthcoming book by the author and developmental psychologist Laurence Steinberg, argues that scientific knowledge about adolescence and about the role of criminal activity during this developmental period is critically important as a foundation ...


The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg Jan 2007

The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

The recent announcement (in late November 2006) of the Copyright Office's triennial rulemaking to identify "classes of works" exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers ...


Wireless Carterfone, Tim Wu Jan 2007

Wireless Carterfone, Tim Wu

Faculty Scholarship

Over the next decade, regulators will spend increasing time on the conflicts between the private interests of the wireless industry and the public's interest in the best uses of its spectrum. This report examines the practices of the wireless industry with an eye toward understanding their influence on innovation and consumer welfare.

This report finds a mixed picture. The wireless industry, over the last decade, has succeeded in bringing wireless telephony at competitive prices to the American public. Yet at the same time we also find the wireless carriers aggressively controlling product design and innovation in the equipment and ...


Building Criminal Capital Behind Bars: Peer Effects In Juvenile Corrections, Patrick J. Bayer, Randi Hjalmarsson, David Pozen Jan 2007

Building Criminal Capital Behind Bars: Peer Effects In Juvenile Corrections, Patrick J. Bayer, Randi Hjalmarsson, David Pozen

Faculty Scholarship

This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each other's subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility and facility-by-prior offense fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence ...


Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard E. Harcourt Jan 2007

Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard E. Harcourt

Faculty Scholarship

How do you reconcile a civil liberties opinion like Edmond v. City of Indianapolis, 183 F.3d 659 (7th Cir. 1999) with the anti-civil libertarian positions that Richard Posner advocates in his book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006)? In Edmond, Judge Posner ruled in favor of a class of plaintiffs challenging the city of Indianapolis' practice of setting up road-blocks to catch drug offenders. The road-blocks had everything going for them. They distributed the costs of enforcement evenly across drivers, interfered minimally with their movement, and invaded only slightly their privacy. In ...


A Brief History Of American Telecommunications Regulation, Tim Wu Jan 2007

A Brief History Of American Telecommunications Regulation, Tim Wu

Faculty Scholarship

While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners ...


Law And The Market: The Impact Of Enforcement, John C. Coffee Jr. Jan 2007

Law And The Market: The Impact Of Enforcement, John C. Coffee Jr.

Faculty Scholarship

The intensity of enforcement efforts by securities regulators varies widely among financially developed nations, but countries with "common law origins" appear to systematically expend more on securities regulation than countries with "civil law origins." However, whether this variable of relative enforcement intensity explains the greater financial development of countries with common law origins or is instead the product of that differential in development remains open to question and depends on the direction of causality. This paper examines several explanations and prefers the hypothesis that enforcement intensity is a product of the level of retail ownership in the jurisdiction, with a ...


Decisions About Coercion: The Corporate Attorney-Client Privilege Waiver Problem, Daniel C. Richman Jan 2007

Decisions About Coercion: The Corporate Attorney-Client Privilege Waiver Problem, Daniel C. Richman

Faculty Scholarship

This symposium essay explores the contestable empirical and normative assumptions that underlie criticisms of the Justice Department's policies with respect to the waiver of corporate attorney-client and work-product privileges. And it considers how authority with respect to prosecutorial decisionmaking in this area ought to be allocated.


The Disputed Quality Of Software Patents, John R. Allison, Ronald J. Mann Jan 2007

The Disputed Quality Of Software Patents, John R. Allison, Ronald J. Mann

Faculty Scholarship

We analyze the characteristics of the patents held by firms in the software industry. Unlike prior researchers, we rely on examination of the individual patents to determine which patents involve software inventions. This method of identifying the relevant patents is more laborious than the methods that previous scholars have used, but it produces a dataset from which we can learn more about the role of patents in the software industry. In general, we find that the patents computer technology firms obtain on software inventions have more prior art references, claims, and forward citations than the patents the same firms obtain ...


An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt Jan 2007

An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt

Faculty Scholarship

Previous research overwhelmingly shows that incarceration led to lower rates of violent crime during the 1990s, but finds no evidence of an effect prior to 1991. This raises what Steven Levitt calls “a real puzzle.” This study offers the solution to that puzzle: the fatal error with prior research is that it used exclusively rates of imprisonment, rather than a measure that combines institutionalization in both prisons and mental hospitals. Using state-level panel data regressions over the period 1934-2001, and controlling for demographic, economic, and criminal justice variables, this study finds a large, robust, and statistically significant relationship between aggregated ...


An Answer To The Question: "What Is Poststructuralism?", Bernard E. Harcourt Jan 2007

An Answer To The Question: "What Is Poststructuralism?", Bernard E. Harcourt

Faculty Scholarship

What is poststructuralism? It has always struck me as odd that so many critical theorists are reluctant to offer an answer to this question. In this essay, I unpack the term and provide a synoptic answer. Poststructuralism, I suggest, is a style of critical reasoning that focuses on the moment of ambiguity in our systems of meaning, as a way to identify the ethical choices that we make when we overcome the ambiguity and move from indeterminacy to certainty of belief in our efforts to understand, interpret, and shape our environment. Post-structuralism concentrates on the moment when we impose meaning ...


Model Uncertainty And The Deterrent Effect Of Capital Punishment, Ethan Cohen-Cole, Steven N. Durlauf, Jeffrey Fagan, Daniel Nagin Jan 2007

Model Uncertainty And The Deterrent Effect Of Capital Punishment, Ethan Cohen-Cole, Steven N. Durlauf, Jeffrey Fagan, Daniel Nagin

Faculty Scholarship

The reintroduction of capital punishment after the end of the Supreme Court moratorium has permitted researchers to employ state level heterogeneity in the use of capital punishment to study deterrent effects. However, no scholarly consensus exists as to their magnitude. A key reason this has occurred is that the use of alternative models across studies produces differing estimates of the deterrent effect. Because differences across models are not well motivated by theory, the deterrence literature is plagued by model uncertainty. We argue that the analysis of deterrent effects should explicitly recognize the presence of model uncertainty in drawing inferences. We ...


International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm Jan 2007

International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm

Faculty Scholarship

The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men ...


Courts As Catalysts: Rethinking The Judicial Role In New Governance, Joanne Scott, Susan P. Sturm Jan 2007

Courts As Catalysts: Rethinking The Judicial Role In New Governance, Joanne Scott, Susan P. Sturm

Faculty Scholarship

This Article offers a step forward in developing a theory of judicial role within new governance, drawing on the emerging practice in both the United States and Europe as a basis for this reconceptualization. The traditional conception of the role of the judiciary – as norm elaborators and enforcers – is both descriptively and normatively incomplete, and thus needs to be rethought. There is a significant but limited role for courts as catalysts. In areas of normative uncertainty or complexity, courts prompt and create occasions for normatively motivated and accountable inquiry and remediation by actors involved in new governance processes. Catalysts thus ...


Conflict Resolution And Systemic Change, Howard Gadlin, Susan P. Sturm Jan 2007

Conflict Resolution And Systemic Change, Howard Gadlin, Susan P. Sturm

Faculty Scholarship

Two assumptions about ADR – its inability to elaborate public values and its unaccountability – lie at the heart of the ADR critique. This Article suggests that, contrary to the assumptions underlying the scholarly and practitioner debate, individual conflict resolution can produce systemic change, and in the process, generate institutional practices advancing public values and addressing issues of common concern. Conflict resolution systems often segregate individual casework from systemic interventions – those aimed at addressing policy issues, examining recurring problems, or redesigning organizational systems. We demonstrate the value of integrating (but not merging) systemic thinking into individual casework, and individual cases into the ...


On Copyright's Authorship Policy, Tim Wu Jan 2007

On Copyright's Authorship Policy, Tim Wu

Faculty Scholarship

It has long been the stated aspiration of copyright to make authors the masters of their own destiny. Yet more often than not, the real subject of American copyright is distributors, book publishers, record labels, broadcasters, and others, who control the rights, bring the lawsuits, and take copyright as their industries' 'life-sustaining protection.' This paper offers a new theory and defense of the role of authors and authorial copyright in the copyright system. I argue that the device of making authors rights-bearers can seed new modes of production in the industries under copyright. Rights-bearing authors can, in other words, help ...


Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher Jan 2007

Just One Click: The Reality Of Internet Retail Contracting, Ronald J. Mann, Travis Siebeneicher

Faculty Scholarship

Scholars for decades have noted the possibility that standard-form contracts disadvantage consumers. For many years, that literature focused on the idea that sellers with market power draft contracts that are disadvantageous to consumers. Law and economics scholars, however, have been skeptical about that hypothesis, pointing out that a strategy of inefficient terms rarely would be the optimal technique for exploiting market power. In recent years, however, the debate has shifted as new product distribution channels have changed the technology of contracting. Now, even firms without market power can exploit the cognitive failures of their customers through "shrouding" of terms and ...


Software Patents, Incumbents, And Entry, John R. Allison, Abe Dunn, Ronald J. Mann Jan 2007

Software Patents, Incumbents, And Entry, John R. Allison, Abe Dunn, Ronald J. Mann

Faculty Scholarship

Software patents have been controversial since the days when "software" referred to the crude programs that came free with an IBM mainframe. Different perspectives have been presented in judicial, legislative, and administrative fora over the years, and the press has paid as much attention to this issue as it has to any other intellectual property topic during this time. Meanwhile, a software industry developed and has grown to a remarkable size, whether measured by revenues or profitability, number of firms or employees, or research expenditures. The scope of software innovation has become even broader, as an increasing number of devices ...


Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus Jan 2007

Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus

Faculty Scholarship

Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account ...


Legal Determinacy And Moral Justification, Jody S. Kraus Jan 2007

Legal Determinacy And Moral Justification, Jody S. Kraus

Faculty Scholarship

The idea that legal theories seek not only to explain but to evaluate the moral justification of particular areas of law is quite familiar. Yet little attention has been paid to the minimal criteria of adequacy for justificatory legal theories. Whereas many theories claim to identify the moral grounds that justify a particular area of law, such as contracts or torts, none of them explains how its justification determines the outcomes of adjudication governed by the law in that area. In this brief Essay for the William and Mary Law Review Symposium on Law and Morality, I argue that a ...


Deconstructing Equity: Public Ownership, Agency Costs, And Complete Capital Markets, Ronald J. Gilson, Charles K. Whitehead Jan 2007

Deconstructing Equity: Public Ownership, Agency Costs, And Complete Capital Markets, Ronald J. Gilson, Charles K. Whitehead

Faculty Scholarship

The traditional law and finance focus on agency costs presumes, without acknowledgement, that the premise that diversified public shareholders are the cheapest risk-bearers is immutable. In this Essay, we raise the possibility that changes in the capital markets have called this premise into question, drawn into sharp relief by the recent private equity buying wave in which the size and range of public companies being taken private expanded significantly. In brief, we argue that private owners, in increasingly complete markets, can transfer risk in discrete slices to counterparties who, in turn, can manage or otherwise diversify away those risks they ...


On The Future Of Internet Governance, Tim Wu, Esther Dyson, A. Michael Froomkin, David A. Gross Jan 2007

On The Future Of Internet Governance, Tim Wu, Esther Dyson, A. Michael Froomkin, David A. Gross

Faculty Scholarship

These proceedings represent the perspectives and views of several experts and participants in the Internet Governance and ICANN process of the late 1990s and early 2000s.


Sarbanes-Oxley's Effects On Small Firms: What Is The Evidence?, Ehud Kamar, Pinar Karaca-Mandic, Eric L. Talley Jan 2007

Sarbanes-Oxley's Effects On Small Firms: What Is The Evidence?, Ehud Kamar, Pinar Karaca-Mandic, Eric L. Talley

Faculty Scholarship

This article presents an overview of the regulatory regime created by the Sarbanes-Oxley Act of 2002 (SOX) and its implications for small firms. We review the available evidence in three distinct domains: compliance costs, stock price reactions, and firms' decisions to exit regulated securities markets.