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Full-Text Articles in Law

Social Justice Movements And Latcrit Community: On Making Social Constructionist And Anti-Essentialist Arguments In Court, Suzanne B. Goldberg Jan 2002

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


Free Riding On Hot Wheels, Victor P. Goldberg Jan 2002

Free Riding On Hot Wheels, Victor P. Goldberg

Faculty Scholarship

When warehouse clubs started making inroads into its market, Toys R Us responded with a policy designed to limit the clubs' access to certain toys. The FTC successfully challenged the policy, arguing that TRU had coordinated a horizontal agreement amongst the toy manufacturers to eliminate competition from this new class of competitors. TRU defended itself, invoking the free-rider rationale. This the Commission rejected as pretext. TRU's argument was better than the Commission gave it credit for, but it failed to press its best argument. That failure stems in part from the shortcomings of the standard free rider formulation, and ...


Illegalized Sexual Dissent: Sexualities And Nationalisms, Katherine M. Franke Jan 2002

Illegalized Sexual Dissent: Sexualities And Nationalisms, Katherine M. Franke

Faculty Scholarship

In this essay, Katherine Franke explores how dissent becomes a different, and in some ways more interesting, phenomenon when the dissenter emerges not from outside the political horizon drawn by the state, but rather from within it, and as an integral part of the state's project of governance. In these cases, the state calls up a set of subjects who are in some fundamental sense positioned to gain state, if not public, disfavor. These subjects are then isolated, excised or otherwise managed in ways that further state interests. Three cases are discussed in which the production of sexual outlaws ...


Engineering A Venture Capital Market: Lessons From The American Experience, Ronald J. Gilson Jan 2002

Engineering A Venture Capital Market: Lessons From The American Experience, Ronald J. Gilson

Faculty Scholarship

This paper seeks to identify the core of the U.S. venture capital contracting model, and then assess the extent to which the model provides guidance in engineering venture capital markets in other countries and, in particular, in identifying a viable role for government in assisting that project. All financial contracts respond to three central contracting problems: uncertainty, information asymmetry and opportunism in the form of agency costs. The special character of venture capital contracting is shaped by the fact that investing in early stage, high technology companies presents these problems in extreme form. The genius of U.S. venture ...


Incomplete Law – A Conceptual And Analytical Framework And Its Application To The Evolution Of Financial Market Regulation, Katharina Pistor, Chenggang Xu Jan 2002

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 ...


Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intra-Client Conflict, William H. Simon Jan 2002

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 Jan 2002

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.


Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer Jan 2002

Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer

Faculty Scholarship

The capital structures of venture capital-backed U.S. companies share a remarkable commonality: overwhelmingly, venture capitalists make their investments through convertible preferred stock. Not surprisingly, a large part of the academic literature on venture capital has sought to explain this peculiar pattern. Financial economists have developed models showing, for example, that convertible securities allocate control depending on the portfolio company's success, operate as a signal to overcome various kinds of information asymmetry, and align the incentives of entrepreneurs and venture capital investors. In this Article we extend this literature by examining the influence of a more mundane factor, tax ...


This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan Jan 2002

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 Jan 2002

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. Jan 2002

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 ...


Punishment, Proportionality And Jurisdictional Transfer Of Adolescent Offenders: A Test Of The Leniency Gap Hypothesis, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman Jan 2002

Punishment, Proportionality And Jurisdictional Transfer Of Adolescent Offenders: A Test Of The Leniency Gap Hypothesis, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman

Faculty Scholarship

In the past two decades, nearly every state has expanded its authority and simplified its procedures to transfer adolescent offenders from juvenile to criminal (adult) courts. As a result, the use of jurisdictional transfer has grown steadily. These developments reflect popular and political concerns that punishment in juvenile courts is too lenient for serious crimes committed by adolescents. Yet there is mixed evidence that expanded transfer authority has produced more certain or severe punishments for adolescents prosecuted in criminal courts. Some empirical studies show that adolescents transferred to criminal court are more likely to be convicted, sentenced to prison, and ...


The Rise And Fall Of Article 2, Robert E. Scott Jan 2002

The Rise And Fall Of Article 2, Robert E. Scott

Faculty Scholarship

On August 13, 2001 the National Conference of Commissioners on Uniform State Laws voted 89 to 53 to reject the 2001 Amendments to Article 2 of the Uniform Commercial Code that had just been approved in May by the American Law Institute. While negotiations continue, this public split between the two bodies that have together shepherded the UCC project for over fifty years represents the likely end of the fourteen year effort to revise the law of sales as embodied in Article 2.

In this Essay, I examine the political economy of the Article 2 project from its origins to ...


Prosecutors And Their Agents – Agents And Their Prosecutors, Daniel C. Richman Jan 2002

Prosecutors And Their Agents – Agents And Their Prosecutors, Daniel C. Richman

Faculty Scholarship

This is an effort to describe the dynamics of interaction between federal prosecutors and federal enforcement agents, and to suggest how these dynamics affect the exercise of enforcement discretion. It concludes by exploring ways in which the proposed normative model – which sees prosecutors and agents as members of a "working group," with each side monitoring the other – can be furthered or frustrated with various procedural and structural changes.


Understanding Enron: "It's About The Gatekeepers, Stupid", John C. Coffee Jr. Jan 2002

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 ...


Blaming Youth, Elizabeth S. Scott Jan 2002

Blaming Youth, Elizabeth S. Scott

Faculty Scholarship

This essay addresses how law makers should think about developmental immaturity in assigning criminal punishment to young offenders. This issue has received little attention in policy debates or in the academic literature, in part because young offenders traditionally have been dealt with in a separate system that held to the view that their disposition was not governed by the criminal law. In the past generation, this model of juvenile of juvenile justice has become obsolete, and, under recent reforms, youths are increasingly tried and punished as adults. These policy changes have proceeded with little attention to the conventional limits on ...


Law Enforcement Under Incomplete Law: Theory And Evidence From Financial Market Regulation, Chenggang Xu, Katharina Pistor Jan 2002

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 ...


Economic Development, Competition Policy, And The World Trade Organization, Bernard Hoekman, Petros C. Mavroidis Jan 2002

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 Jan 2002

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 ...


Trade, Law, And Product Complexity, Daniel Berkowitz, Johannes Moenius, Katharina Pistor Jan 2002

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 ...


Thirteen Ways Of Looking At The Law, Bert I. Huang Jan 2002

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

Faculty Scholarship

In this short essay, I review Judge Richard Posner's book, Frontiers of Legal Theory.


Essay – How Copyright Got A Bad Name For Itself, Jane C. Ginsburg Jan 2002

Essay – How Copyright Got A Bad Name For Itself, Jane C. Ginsburg

Faculty Scholarship

Over the last several years, copyrighted works have come to account for a healthy portion of our GNP, and an even more substantial share of U.S. exports. Nonetheless, copyright is in bad odor these days. Many of the developments over the last years designed to protect copyright have drawn academic scorn, and intolerance even from the popular press. I have a theory about how copyright got a bad name for itself, and I can summarize it in one word: Greed.

Corporate greed and consumer greed. Copyright owners, generally perceived to be large, impersonal and unlovable corporations (the human creators ...


Lipton And Rowe's Apologia For Delaware: A Short Reply, Ronald J. Gilson Jan 2002

Lipton And Rowe's Apologia For Delaware: A Short Reply, Ronald J. Gilson

Faculty Scholarship

Three themes animate Martin Lipton and Paul Rowe's thoughtful response to my critical evaluation of Unocal's fifteen-year history. First, they maintain that affording shareholders a primary role in the governance of takeovers depends on a commitment to the stock market's informational efficiency. Second, they claim that allowing shareholders to amend or repeal a poison pill ignores empirical evidence that the existence of a poison pill is associated with higher takeover premiums. Third, they assert that the Delaware General Corporation Law (DGCL) reflects an implicit mega-principle that assigns control over takeovers to managers. This short reply corrects Lipton ...


Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss Jan 2002

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes ...