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1996

Washington University Law Review

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Those Japanese Firms With Their Disdain For Shareholders: Another Fable For The Academy, Steven N. Kaplan, J. Mark Ramseyer Jan 1996

Those Japanese Firms With Their Disdain For Shareholders: Another Fable For The Academy, Steven N. Kaplan, J. Mark Ramseyer

Washington University Law Review

We begin in Section II by discussing the modem theory of path dependence. In Section III, we trace the ties between that theory and the orthodox understanding of how Japanese firms behave. Then in Section IV, we report Steven Kaplan's recent empirical work on the actual behavior of Japanese firms. Finally, armed with the empirical results that contradict the orthodox view, in Section V we suggest how that view may have arisen.


America's Shifting Fascination With Comparative Corporate Governance, Edward B. Rock Jan 1996

America's Shifting Fascination With Comparative Corporate Governance, Edward B. Rock

Washington University Law Review

In this Article, I want to focus on the specific emergence of the comparativist turn in American corporate law scholarship, to try to appraise the significance of the recent American fascination with German and Japanese corporate governance, and to consider what it tells us about the possible path dependance of corporate law scholarship. Before turning to the comparative scholarship, however, I will first try to put it into context by giving a quick and somewhat idiosyncratic overview of the modern history of corporate law scholarship in the United States.


Aids And The Blood Supply: An Analysis Of Law, Regulation, And Public Policy, Steven R. Salbu Jan 1996

Aids And The Blood Supply: An Analysis Of Law, Regulation, And Public Policy, Steven R. Salbu

Washington University Law Review

Acquired Immune Deficiency Syndrome ("AIDS") is among the greatest challenges to modem epidemiology. As the number of diagnosed cases and predicted future infections mounts, the need to stem the transmission of the Human Immunodeficiency Virus ("HIV") becomes an increasingly crucial public health issue. Since scientists first diagnosed AIDS and began to understand its viral source in the early 1980s, lawmakers and policymakers have sought responses to eliminate or retard the spread of HIV. As the quest for a vaccination or a cure has proven frustratingly elusive, managing AIDS in the short term has come to depend largely on measures that ...


Taxes And The Structure Of Japanese Firms: The Hidden Aspects Of Income Taxation, Hideki Kanda Jan 1996

Taxes And The Structure Of Japanese Firms: The Hidden Aspects Of Income Taxation, Hideki Kanda

Washington University Law Review

This Article addresses the influence income taxation has had on Japanese firms.


If You Think You No Longer Need To Know Anything About The Rule Against Perpetuities, Then Read This!, David M. Becker Jan 1996

If You Think You No Longer Need To Know Anything About The Rule Against Perpetuities, Then Read This!, David M. Becker

Washington University Law Review

Lawyers have dreaded the common-law rule against perpetuities for many generations, and for good reason. It is difficult to teach and to comprehend; consequently, most lawyers have never mastered it. Additionally, the rule is quirky, difficult to justify, and unfair. In recent years perpetuities law has undergone substantial legislative reform. The majority of these efforts has taken the form of "wait-and-see" conversions of the common-law rule. And the most significant and prevalent of these reforms has been the Uniform Statutory Rule Against Perpetuities ("USRAP"), which offers "wait-and-see" for a period of ninety years coupled with reformation of interests that fail ...


The Invisibility Factor: The Limits Of Public Choice Theory And Public Institutions, Dorothy A. Brown Jan 1996

The Invisibility Factor: The Limits Of Public Choice Theory And Public Institutions, Dorothy A. Brown

Washington University Law Review

Public choice theory, which seeks to apply economic analysis to the political process, is "one of the dominant themes in contemporary legal scholarship." Public choice is not simply a scholarly theory, but is also used frequently in judicial decisionmaking. Therefore, the theory must be carefully examined to expose its flaws. This Article's thesis is that because public choice theory underestimates the ability of the majority to influence the political process, it is of limited use as a predictive tool. More specifically, this Article suggests that in certain circumstances, public choice theory incorrectly predicts whether a special interest group can ...


Path Dependence In Corporate Contracting: Increasing Returns, Herd Behavior And Cognitive Biases, Marcel Kahan, Michael Klausner Jan 1996

Path Dependence In Corporate Contracting: Increasing Returns, Herd Behavior And Cognitive Biases, Marcel Kahan, Michael Klausner

Washington University Law Review

Part I of this Article reviews our prior analysis of increasing returns in corporate contract terms. Within the rubric of increasing returns, we discuss learning and network externalities in corporate contracts. Parts II and III examine how agency costs and behavioral biases can lead to standardization.


In Praise Of Footnotes, Edward R. Becker Jan 1996

In Praise Of Footnotes, Edward R. Becker

Washington University Law Review

It has become fashionable to deride the use of footnotes in judicial opinions and to call for their elimination. Footnotes, it is alleged, interrupt the flow of the opinion, distract the reader, add to the opinion's length and complexity, and too often diminish the opinion's clarity by qualifying and hedging its holding. The clarion call to dispense with footnotes comes from impressive quarters, including several of America's most respected judges-Justice Stephen Breyer, Chief Judge Richard Posner, and former Chief Judge Abner Mikva. These able and thoughtful jurists have sustained their vows of abstinence and have written footnoteless ...


Foreword: Path Dependence And Comparative Corporate Governance, Ronald J. Mann, Curtis J. Milhaupt Jan 1996

Foreword: Path Dependence And Comparative Corporate Governance, Ronald J. Mann, Curtis J. Milhaupt

Washington University Law Review

This symposium issue of the Washington University Law Quarterly focuses the application of path dependence to corporate institutions on a natural topic: comparative corporate governance.


Necessity Of Conviction Before Forfeiture Under Missouri's Criminal Activity Forfeiture Act, Shannon Jade Ryser Jan 1996

Necessity Of Conviction Before Forfeiture Under Missouri's Criminal Activity Forfeiture Act, Shannon Jade Ryser

Washington University Law Review

No abstract provided.


On Seeing Chinese Law From The Chinese Point Of View: An Appreciative Look At The Scholarly Career Of Professor William Jones, Janet E. Ainsworth Jan 1996

On Seeing Chinese Law From The Chinese Point Of View: An Appreciative Look At The Scholarly Career Of Professor William Jones, Janet E. Ainsworth

Washington University Law Review

No abstract provided.


Bill Jones: An Appreciation, Donald C. Clarke Jan 1996

Bill Jones: An Appreciation, Donald C. Clarke

Washington University Law Review

No abstract provided.


Empiricists And The Collapse Of The Theory-Practice Dichotomy In The Large Classroom: A Review Of Lopucki And Warren's Secured Credit: A Systems Approach, William J. Woodward Jr. Jan 1996

Empiricists And The Collapse Of The Theory-Practice Dichotomy In The Large Classroom: A Review Of Lopucki And Warren's Secured Credit: A Systems Approach, William J. Woodward Jr.

Washington University Law Review

No abstract provided.


Obscenity Prosecutions In Cyberspace: The Miller Test Cannot “Go Where No [Porn] Has Gone Before”, J. Todd Metcalf Jan 1996

Obscenity Prosecutions In Cyberspace: The Miller Test Cannot “Go Where No [Porn] Has Gone Before”, J. Todd Metcalf

Washington University Law Review

No abstract provided.


Keeping Up With The Jones (Standards): A Tribute To Professor William C. Jones, William P. Alford Jan 1996

Keeping Up With The Jones (Standards): A Tribute To Professor William C. Jones, William P. Alford

Washington University Law Review

No abstract provided.


Foreign Forum Selection Clauses Under Cogsa: The Supreme Court Charts New Waters In The Sky Reefer Case, Christine N. Schnarr Jan 1996

Foreign Forum Selection Clauses Under Cogsa: The Supreme Court Charts New Waters In The Sky Reefer Case, Christine N. Schnarr

Washington University Law Review

No abstract provided.


From Ming To Qing: Social Continuity And Changes As Seen In The Law Codes, Yonglin Jiang Jan 1996

From Ming To Qing: Social Continuity And Changes As Seen In The Law Codes, Yonglin Jiang

Washington University Law Review

No abstract provided.


Panacea Or Corporate Tool?: Debunking The Supreme Court's Preference For Binding Arbitration, Jean R. Sternlight Jan 1996

Panacea Or Corporate Tool?: Debunking The Supreme Court's Preference For Binding Arbitration, Jean R. Sternlight

Washington University Law Review

This Article does not advocate reviving the old hostility toward binding arbitration. Rather, the Court should once again apply the Federal Arbitration Act as it was intended to be applied: to accept binding arbitration where it is fair and has been accepted by the parties, and to reject binding arbitration where it has been foisted unfairly upon a weaker party. If the Court fails to change its course, Congress should step in to ensure that binding arbitration is used to further rather than defeat justice.


The Outer Limits Of The Lanham Act's Section 43(A): When Does “Promotion” Become Commercial Defamation?, Jonathan H. Garside Jan 1996

The Outer Limits Of The Lanham Act's Section 43(A): When Does “Promotion” Become Commercial Defamation?, Jonathan H. Garside

Washington University Law Review

No abstract provided.


Curbing Violence Or Teaching It: Criminal Immunity For Teachers Who Inflict Corporal Punishment, Carolyn Peri Weiss Jan 1996

Curbing Violence Or Teaching It: Criminal Immunity For Teachers Who Inflict Corporal Punishment, Carolyn Peri Weiss

Washington University Law Review

No abstract provided.


Arbitrating Employment Discrimination Claims: The Lower Courts Extend Gilmer V. Interstate/Johnson Lane Corp. {111 S. Ct. 1647 (1991)} To Include Individual Employment Contracts, Jennifer A. Marler Jan 1996

Arbitrating Employment Discrimination Claims: The Lower Courts Extend Gilmer V. Interstate/Johnson Lane Corp. {111 S. Ct. 1647 (1991)} To Include Individual Employment Contracts, Jennifer A. Marler

Washington University Law Review

No abstract provided.


Lockouts Involving Replacement Workers: An Empirical Public Policy Analysis And Proposal To Balance Economic Weapons Under The Nlra, Michael H. Leroy Jan 1996

Lockouts Involving Replacement Workers: An Empirical Public Policy Analysis And Proposal To Balance Economic Weapons Under The Nlra, Michael H. Leroy

Washington University Law Review

Section Il.A provides an overview of factors contributing to this competition, including the North American Free Trade Agreement ("NAFTA"), the General Agreement on Tariffs and Trade ("GATr"), deregulation of large industries, rapidly improving technology, and massive layoffs resulting from corporate restructuring. Section II.B discusses specific instances where employers who locked out workers appeared to benefit from these changes in their relevant labor markets. Section IlI.A reviews early lockout doctrines that permitted employers to use this weapon only defensively in order to protect themselves from injuries such as sabotage of their equipment or poor production by workers. Section ...


Flsa: Exempting Paralegals From Overtime Pay, Allison Engel Jan 1996

Flsa: Exempting Paralegals From Overtime Pay, Allison Engel

Washington University Law Review

No abstract provided.


Family As A Rational Classification, David D. Haddock, Daniel D. Polsby Jan 1996

Family As A Rational Classification, David D. Haddock, Daniel D. Polsby

Washington University Law Review

Using family as an operational surrogate in a statutory plan aimed at assuring the stability of a neighborhood is overbroad because it thereby rules out many legitimate associations that would not introduce neighborhood instability. Additionally,family is underinclusive in that it allows many arrangements that would undermine neighborhood stability. Our desire is to understand how the world came to be the way it is-why prejudices and conventions assumed the forms that they did rather than some other form. Readers will judge for themselves, and will differ, whether what is and has been is also what should be. Because our province ...


On Tariffs V. Subsidies In Interstate Trade: A Legal And Economic Analysis, Christopher R. Drahozal Jan 1996

On Tariffs V. Subsidies In Interstate Trade: A Legal And Economic Analysis, Christopher R. Drahozal

Washington University Law Review

Part II of this Article sets out the Supreme Court's current legal analysis of tariffs versus subsidies under the dormant Commerce Clause. Part III undertakes an economic analysis of tariffs versus subsidies, from both a traditional international economics perspective and from a rent-seeking perspective. Part IV suggests an alternative constitutional basis for the Court's distinction between tariffs and subsidies: the Import-Export Clause of the United States Constitution. Part V summarizes my conclusions.


Parental Autonomy Versus Children's Health Rights: Should Parents Be Prohibited From Smoking In The Presence Of Their Children?, Mireille O. Butler Jan 1996

Parental Autonomy Versus Children's Health Rights: Should Parents Be Prohibited From Smoking In The Presence Of Their Children?, Mireille O. Butler

Washington University Law Review

No abstract provided.


Manageable Adequacy Standards In Education Reform Litigation, William F. Dietz Jan 1996

Manageable Adequacy Standards In Education Reform Litigation, William F. Dietz

Washington University Law Review

No abstract provided.


The Decline And Potential Collapse Of Federal Guideline Sentencing, David Robinson Jr. Jan 1996

The Decline And Potential Collapse Of Federal Guideline Sentencing, David Robinson Jr.

Washington University Law Review

Although it represents an impressive intellectual effort, the present federal sentencing structure is markedly dysfunctional in practice. A recent directive by the Attorney General, to all federal prosecutors, makes an already deeply flawed system so unjust that it deserves speedy replacement. This Article begins by discussing the nature of the problem. Then, the Article discusses the problem's recent history regarding the scope of prosecutive discretion, both traditionally and under the Sentencing Reform Act and Guidelines, and the efforts to reduce the effect of prosecutive discretion. It concludes with a consideration of what is to be done to rectify the ...


Informants And The Fourth Amendment: A Reconsideration, Tracey Maclin Jan 1996

Informants And The Fourth Amendment: A Reconsideration, Tracey Maclin

Washington University Law Review

This Article argues that the Court's current interpretation of the Fourth Amendment, which sanctions the government's authority to insert secret spies and informants into our lives, is misguided. Part I highlights the historical background of the Fourth Amendment to show why its procedural safeguards are relevant when considering whether the government should be free of constitutional restraint when deploying informants and spies in our homes and offices. Part II will explain and critique the Court's cases on informants. Part III contends that the Court's doctrine on informants rests on a fallacious conception of privacy. As an ...


American Deposit Corp. V. Schacht: Yet Another Attempt To Limit National Banks' Powers To Sell Nondeposit Investment Products, Jennifer A. Marler Jan 1996

American Deposit Corp. V. Schacht: Yet Another Attempt To Limit National Banks' Powers To Sell Nondeposit Investment Products, Jennifer A. Marler

Washington University Law Review

No abstract provided.