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Full-Text Articles in Law

An Institutional Emphasis, Lance Liebman Jan 2000

An Institutional Emphasis, Lance Liebman

Faculty Scholarship

Professor Schwartz is an important scholar of the interface between the difficult moral concept of privacy and the new information technologies. Someday a book will tell the story of modem history through the lens of privacy: village lives well known to neighbors; the claims of the national state (taxes, military service); the social welfare state; and the possibilities and dangers of modem biology. As Paul Schwartz has written, DNA and other tools can tell us a great deal about ourselves and can improve our lives; they can also tell employers, drug companies, prospective in-laws, and the police things we prefer ...


Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard Jan 2000

Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard

Faculty Scholarship

There are 3,119,963 square miles in the continental United States. That sounds like plenty of space to put just about anything. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era – unconstrained siting – lasted until the late 1960s. Then began the second era – protecting natural areas. In the early 1990s, we embarked upon a third era – environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that we should ...


The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke Jan 2000

The Uses Of History In Struggles For Racial Justice: Colonizing The Past And Managing Memory, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary ...


On The Socratic Maxim, Joseph Raz Jan 2000

On The Socratic Maxim, Joseph Raz

Faculty Scholarship

Many years ago John Finnis and I became interested in the Socratic view that it is better to suffer wrong than to do it. My interest was triggered by Anselm Müller's lecture on the subject given at Balliol at that time. Finnis discussed the issue in his Fundamentals of Ethics, where Müller's influence on him is acknowledged. At the time John Finnis and I debated the maxim and had a lengthy correspondence about it, but we did not convince each other. Now when I return to the issue, I can no longer remember the position I then took ...


Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman Jan 2000

Of Prosecutors And Special Prosecutors: An Organizational Perspective, H. Geoffrey Moulton Jr., Daniel Richman

Faculty Scholarship

The Independent Counsel (IC) statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr.

Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end, bringing criminal charges against people believed to have ...


A Legal Giant Is Dead, Henry Paul Monaghan Jan 2000

A Legal Giant Is Dead, Henry Paul Monaghan

Faculty Scholarship

Herbert Wechsler died at his home on April 26, 2000. Two days later, the New York Times obituary's headline announced the passing of a "legal giant," a richly merited appellation. Herbert Wechsler was, I believe, the greatest academic figure in the history of Columbia Law School. At the height of his career, Herb stood at the top of three academic fields: criminal law, constitutional law, and federal jurisdiction. His achievements were, moreover, not confined to Columbia, the faculty of which he joined in 1933 after having served as law clerk to Justice Harlan Fiske Stone. From 1944 to 1946 ...


Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer Jan 2000

Executives And Hedging: The Fragile Legal Foundation Of Incentive Compatibility, David M. Schizer

Faculty Scholarship

Options are granted to executives to inspire better performance by tying pay to the employer's stock price. Yet this incentive rationale no longer holds if executives can use the derivatives market to simulate a sale of their options, a practice known as hedging. This Article evaluates the effectiveness of existing legal constraints on hedging by executives, including limits derived from contract, securities and tax law. Although investment bankers have been searching for ways around these constraints, the bottom line is that, at least for now, executives are unable to hedge option grants: While contractual limits are rare, the securities ...


The Nature And Function Of Criminal Theory, George P. Fletcher Jan 2000

The Nature And Function Of Criminal Theory, George P. Fletcher

Faculty Scholarship

The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment; the theory of justification and of excuse, that is, of wrongdoing and responsibility; the relevance of consequences to the gravity of offenses (the problem of moral luck); and the ...


(Baby) M Is For The Many Things: Why I Start With Baby M, Carol Sanger Jan 2000

(Baby) M Is For The Many Things: Why I Start With Baby M, Carol Sanger

Faculty Scholarship

For several years now I have begun my first-year contracts course with the 1988 New Jersey Supreme Court case In the Matter of Baby M. In this essay, I want to explain why. I offer the explanation in the spirit of modest proselytizing, recognizing that many of us already have a favored method or manner into the course: some introductory questions we pose before leaping into (or over) the introductions already provided by the editors of the many excellent casebooks available. But I have found that Baby M works extremely well in ways that others may want to consider. It ...


Patterns Of Legal Change: Shareholder And Creditor Rights In Transition Economies, Katharina Pistor Jan 2000

Patterns Of Legal Change: Shareholder And Creditor Rights In Transition Economies, Katharina Pistor

Faculty Scholarship

This paper analyses changes in the legal protection of shareholder and creditor rights in 24 transition economies from 1990 to 1998. It documents differences in the initial conditions and a tendency towards convergence of formal legal rules as the result of extensive legal reforms. Convergence seems to be primarily the result of foreign technical assistance programs as well as of harmonisation requirements for countries wishing to join the European Union. The external supply of legal rules not withstanding, the pattern of legal reforms suggests that law reform has been primarily responsive, or lagging, rather than leading economic development. In comparison ...


Corporate Governance Lessons From Russian Enterprise Fiascoes, Merritt B. Fox, Michael A. Heller Jan 2000

Corporate Governance Lessons From Russian Enterprise Fiascoes, Merritt B. Fox, Michael A. Heller

Faculty Scholarship

This Article draws on a rich array of deviant behavior in Russian enterprises to craft lessons for corporate governance theory. First, Professors Fox and Heller define corporate governance by looking to the economic functions of the firm. Based on this definition, they develop a typology that comprehensively shows all the channels through which bad corporate governance can inflict damage on a country's real economy. Second, they explain the causes of Russian enterprise fiascoes by looking to the particular initial conditions prevailing at privatization – untenable firm boundaries and insider allocation of firm shares – and the bargaining dynamics that have followed ...


Critical Approaches To Property Institutions, Michael A. Heller Jan 2000

Critical Approaches To Property Institutions, Michael A. Heller

Faculty Scholarship

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost ...


Kosovo And The Great Air Power Debate, Daniel L. Byman, Matthew C. Waxman Jan 2000

Kosovo And The Great Air Power Debate, Daniel L. Byman, Matthew C. Waxman

Faculty Scholarship

The following section provides an overview of how to think about air power and coercion, addressing several key limits of the current literature. We next examine NATO goals in Kosovo and the mixed success eventually achieved. Using that baseline, we explore various explanations for Belgrade's eventual capitulation and clarify how air power's role in each of them should be understood; we leave aside the issue of whether coercion was a proper strategy for addressing the Balkan crisis and focus instead on how to assess air power as a tool of that strategy. We conclude with recommendations for recasting ...


Sticks And Snakes: Derivatives And Curtailing Aggressive Tax Planning, David M. Schizer Jan 2000

Sticks And Snakes: Derivatives And Curtailing Aggressive Tax Planning, David M. Schizer

Faculty Scholarship

Complex "derivative" financial instruments are often used in aggressive tax planning. In response, the government has implemented mark-to-market type reforms, but only partially. Considered in isolation, these incremental reforms are likely to seem well advised in measuring income more accurately. However, there is an important "second best" cost, emphasized in this Article: the ability of well-advised taxpayers either to avoid the new rule or to turn it to their advantage (here called "defensive" and "offensive" planning options, respectively). This Article uses two case studies to identify how these effects arise and to suggest ways of combating them. The first case ...


Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard Jan 2000

Trends In The Supply And Demand For Environmental Lawyers, Michael B. Gerrard

Faculty Scholarship

The boom times for environmental lawyers were the late 1980s and the early 1990s. The June 1990 issue of Money magazine called environmental law a "fast-track career." Two or three years of experience with the U.S. Environmental Protection Agency (EPA), a state environmental agency, the environmental units of the Justice Department, or a state attorney general's office were a ticket to a high-paying job in the private sector. Law students were clamoring to enter the field and law firms were scrambling to find experienced environmental lawyers, or to recycle newly underemployed antitrust lawyers into this burgeoning field.


The Landscape Of Constitutional Property, Thomas W. Merrill Jan 2000

The Landscape Of Constitutional Property, Thomas W. Merrill

Faculty Scholarship

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall ... be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before we ...


Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith Jan 2000

Optimal Standardization In The Law Of Property: The Numerus Clausus Principle, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

A central difference between contract and property concerns the freedom to "customize" legally enforceable interests. The law of contract recognizes no inherent limitations on the nature or the duration of the interests that can be the subject of a legally binding contract. Certain types of promises – such as promises to commit a crime – are declared unenforceable as a matter of public policy. But outside these relatively narrow areas of proscription and requirements such as definiteness and (maybe) consideration, there is a potentially infinite range of promises that the law will honor. The parties to a contract are free to be ...


The President And Choices Not To Enforce, Peter L. Strauss Jan 2000

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.

Issues of constitutional structure and function are among the most ...


Liberality, Philip A. Hamburger Jan 2000

Liberality, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans ever consider themselves liberal? To many historians, this will seem a strange question. The concept of liberalism is widely held to be a nineteenth-century innovation, and therefore to inquire whether Americans in the previous century thought of themselves as liberal seems anachronistic.

Yet precisely because so many scholars take for granted the late evolution of liberal ideas, it may be all the more valuable to reexamine this assumption. Is there really no evidence that eighteenth-century Americans considered themselves liberal? Although they may not have embraced later concepts of liberalism, is it not at least possible that ...


Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies Jan 2000

Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies

Faculty Scholarship

Patterns of "stop and frisk" activity by police across New York City neighborhoods reflect competing theories of aggressive policing. "Broken Windows" theory suggest that neighborhoods with greater concentration of physical and social disorder should evidence higher stop and frisk activity, especially for "quality of life" crimes. However, although disorder theory informs quality of life policing strategies, patterns of stop and frisk activity suggest that neighborhood characteristics such as racial composition, poverty levels, and extent of social disorganization are stronger predictors of race- and crime-specific stops. Accordingly, neighborhood "street stop" activity reflects competing assumptions and meanings of policing strategy. Furthermore, looking ...


The President And Choices Not To Enforce, Peter L. Strauss Jan 2000

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

This paper was one of a number given in a panel on executive authority in a Duke Law School conference, "The Constitution Under Clinton: A Critical Assessment." As its title suggests, the principal subject of the panel was the President's authority, if any, to decline to implement statutes he regards as unconstitutional. The lead paper on the panel focused specifically on questions of the scope of the President's authority to engage in constitutional interpretation, relating that analysis to the role of the courts and their institutional responsibilities for deciding constitutional issues. This paper seeks to place this set ...


The President And Choices Not To Enforce, Peter L. Strauss Jan 2000

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

This paper was one of a number given in a panel on executive authority in a Duke Law School conference, "The Constitution Under Clinton: A Critical Assessment." As its title suggests, the principal subject of the panel was the President's authority, if any, to decline to implement statutes he regards as unconstitutional. The lead paper on the panel focused specifically on questions of the scope of the President's authority to engage in constitutional interpretation, relating that analysis to the role of the courts and their institutional responsibilities for decision of constitutional issues. This paper seeks to place this ...


The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann Jan 2000

The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann

Faculty Scholarship

Rules governing letters of credit rest on the premise that they provide a highly certain method of payment to a seller of goods. Thus, the law and the terms of the letter of credit make the obligation of the issuer to provide payment to the seller independent of the purchaser's performance on the underlying contract. Hence, the issuer is obligated to pay the seller upon presentation of specified documents, without regard to the seller's actual compliance with the contract. In practice, however, most drafts on letters of credit in such transactions do not comply with the letter of ...


The Case For Formalism In Relational Contract, Robert E. Scott Jan 2000

The Case For Formalism In Relational Contract, Robert E. Scott

Faculty Scholarship

The central task in developing a plausible normative theory of contract law is to specify the appropriate role of the state in regulating incomplete or relational contracts. Complete contracts (to the extent that they exist in the real world) are rarely, if ever, breached since by definition the pay-offs for every relevant action and the corresponding sanctions for non performance are prescribed in the contract. In the case of incomplete (or relational) contracts, however, parties have incentives to breach by exploiting gaps in the contract. Making the verifiable terms of the contract legally enforceable and regulating incompleteness in a consistent ...


Information Technology And The Increasing Efficacy Of Non-Legal Sanctions In Financing Transactions, Ronald J. Mann Jan 2000

Information Technology And The Increasing Efficacy Of Non-Legal Sanctions In Financing Transactions, Ronald J. Mann

Faculty Scholarship

This paper investigates the effect of advances in information technology on the private institutions that businesses use to resolve information asymmetries in financing transactions. It discusses four separate effects. First, in some cases information technology will permit direct verification of the information, obviating the problem entirely; the paper discusses the example of the substitution of the debit card for the check, which provides an immediate payment that obviates the need for the merchant to consider whether payment will be forthcoming when the check is presented to the bank on which it is drawn. Second, the paper discusses how advances in ...


Economic Reasoning And The Framing Of Contract Law: Sale Of An Asset Of Uncertain Value, Victor P. Goldberg Jan 2000

Economic Reasoning And The Framing Of Contract Law: Sale Of An Asset Of Uncertain Value, Victor P. Goldberg

Faculty Scholarship

By analyzing two American contract law decisions, the paper illustrates the usefulness of economic analysis in framing the inquiry. The cases have a common feature, unrecognized by the courts: they both deal with the production and transfer of information regarding the sale of an asset of uncertain value. One involves the combination of an option and a lockup to encourage the buyer to produce information. The other involves contingent compensation to convey the seller's assurance of the quality of the assets. Once this is recognized, the outcomes are straightforward.


From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg Jan 2000

From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg

Faculty Scholarship

This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in § 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if ...


The Political Parties And Campaign Finance Reform, Richard Briffault Jan 2000

The Political Parties And Campaign Finance Reform, Richard Briffault

Faculty Scholarship

The major political parties have blown large and widening holes in federal campaign finance law. The most significant party practices – independent expenditures, soft money fundraising, and issue advocacy – map on to the fault lines central to the constitutional law of campaign finance – so that limiting these party activities raises important constitutional question. Indeed, in Colorado Republican Federal Campaign Committee v FEC, a Supreme Court plurality determined that parties, like PACs, may engage in expenditures that are independent of their candidates and, thus, not subject to the limits on party contributions to candidates. So, too, several justices and some political scientists ...


International Copyright: From A "Bundle" Of National Copyright Laws To A Supranational Code?, Jane C. Ginsburg Jan 2000

International Copyright: From A "Bundle" Of National Copyright Laws To A Supranational Code?, Jane C. Ginsburg

Faculty Scholarship

In recent years, the number and content of substantive norms that international copyright treaties impose on member states have increased considerably. It is therefore appropriate to consider the extent to which those instruments have in effect created an international (or at least multinational) copyright code, as well as to inquire what role national copyright laws do and should have in an era not only of international copyright norms, but of international dissemination of copyrighted works. This Article first considers the displacement of national norms through the evolution of a de facto international copyright code, elaborated in multilateral instruments such as ...


Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott Jan 2000

Social Norms And The Legal Regulation Of Marriage, Elizabeth S. Scott

Faculty Scholarship

This paper examines the influence of legal regulation on the social norms that shape marital behavior, focusing particularly on the interaction between legal reform and norm change in the past generation. Two categories of norms governed the spousal and parental roles in traditional marriage – commitment norms and gender norms. In regulating the spousal relationship, commitment norms functioned to promote cooperation and to allow the parties to make credible commitments, while gender norms encouraged spouses to subordinate the wife's interest to that of the husband. These norms, although analytically distinct, were intricately interwoven (or "bundled"), so that disaggregation became difficult ...