Law Commons^™

The Role Of Deterrence In The Formulation Of Criminal Law Rules: At Its Worst When Doing Its Best, Paul H. Robinson, John M. Darley

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For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime. Although this seems initially an intuitively compelling strategy, we are going to suggest that is a poor one; poor for two reasons. First, its effectiveness rests on a set of assumptions that on examination cannot be sustained. Second, the attempt to employ the strategy generates a good many crimogenic costs that are …

How Relevant Is Jury Rationality?, David A. Hoffman

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This essay reviews Punitive Damages: How Juries Decide by Cass Sunstein, et al. The book provides a good example of a recent trend: the use of behavioralist research to justify surprisingly paternalistic legal reforms. While critics of behavioralism often contend that its theoretical foundations are weak, this approach is unlikely to prove an effective rejoinder in the new debate about what kinds of paternalism are made permissible by human "irrationality". A better approach: (1) notes the lack of a nexus between behavioralism and the supposed emergent necessity of paternalist reforms; and (2) suggests that juror unwillingness to apply cost-benefit formula …

Where Shall We Live? Class And The Limitations Of Fair Housing Law, Wendell Pritchett

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This paper examines the effort to secure fair housing laws at the local, state and federal levels in the 1950s, focusing in particular on New York City and state. It will examine the arguments that advocates made regarding the role the law should play in preventing housing discrimination, and the relationship of these views to advocates' understanding of property rights in general. My paper will argue that fair housing advocates had particular conceptions about the importance of housing in American society that both supported and limited their success. By arguing that minorities only sought what others wanted - a single-family …

Can Majority Voting Provisions Do It All?, David A. Skeel Jr.

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No abstract provided.

Takeover Defense When Financial Markets Are (Only) Relatively Efficient, Michael L. Wachter

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This paper evaluates the impact of developments in the understanding of asset value pricing for alternative legal standards for takeover defenses: the management discretion and the shareholder rights positions. Both sides place considerable, albeit implicit, reliance on alternative views of the efficiency of financial markets. Developments in finance theory show that when financial markets are only "relatively efficient," stock prices can incorrectly value the corporation at any point in time, at the same time as investors cannot outperform the market on an ongoing basis. I focus on financial market anomalies arising from the failure of the capital asset pricing model …

Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz

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Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks …

Immigration And The Workplace: Immigration Restrictions As Employment Discrimination, Howard F. Chang

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No abstract provided.

Regionalization Of International Criminal Law Enforcement: A Preliminary Exploration, William W. Burke-White

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No abstract provided.

Child Welfare And Civil Rights, Dorothy E. Roberts

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No abstract provided.

Speaking Volumes: Musings On The Issues Of The Day, Inspired By The Memory Of Mary Joe Frug, Regina Austin, Elizabeth M. Schneider

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No abstract provided.

Corporate Constitutionalism: Antitakeover Charter Provisions As Pre-Commitment, Marcel Kahan, Edward B. Rock

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Constitutions constitute a polity and create and entrench power. A corporate constitution - the governance choices incorporated in state law and the certificate of incorporation - resembles a political constitution. Delaware law allows parties to create corporations, to endow them with perpetual life, to assign rights and duties to "citizens" (directors and shareholders), to adopt a great variety of governance structures, and to entrench those choices. In this Article, we argue that the decision to endow directors with significant power over decisions whether and how to sell the company is a constitutional choice of governance structure. We then argue that …

Defeating Class Certification In Securities Fraud Actions, Kermit Roosevelt Iii

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No abstract provided.

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

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No abstract provided.

Is There A Role For Lawyers In Preventing Future Enrons?, Jill E. Fisch, Kenneth M. Rosen

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Following the collapse of the Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer’s role by requiring covered attorneys to “report up” evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to “report up” subjects a lawyer to liability under federal law.

This Article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors …

How To Fix Wall Street: A Voucher Financing Proposal For Securities Intermediaries, Stephen Choi, Jill E. Fisch

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No abstract provided.

Harm, History, And Counterfactuals, Stephen R. Perry

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No abstract provided.

No Other Gods: Answering The Call Of Faith In The Practice Of Law, Howard Lesnick

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No abstract provided.

Simplifying The Transition To A (Progressive) Consumption Tax, Mitchell L. Engler, Michael S. Knoll

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No abstract provided.

Corporate Control Transactions: Introduction, Edward B. Rock, Michael L. Wachter

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No abstract provided.

Immigration Restrictions As Employment Discrimination, Howard F. Chang

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In this paper, I analyze restrictions on immigration to the United States as a form of government-mandated employment discrimination against aliens. Through our immigration laws, we deny aliens access to valuable employment opportunities that are open to natives. Under our immigration and nationality laws, we base this discrimination explicitly on circumstances of birth beyond the control of the alien. I argue that immigration restrictions thereby violate our liberal ideals of equality, which require a cosmopolitan perspective that extends equal concern to all individuals. Furthermore, even if we assume a less demanding moral theory that allows us to give the interests …

Direct And Collateral Federal Court Review Of The Adequacy Of State Procedural Rules, Catherine T. Struve

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No abstract provided.

Containing The Promise Of Insurance: Adverse Selection And Risk Classification, Tom Baker

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Insurance law, risk pools, adverse selection

Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas

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No abstract provided.

Shareholder Value And Auditor Independence, William W. Bratton

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This Article questions the practice of framing problems concerning auditors’ professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal’s control and cannot act independently. For the same reason, auditors’ duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …

Diminished Rationality, Diminished Responsibility, Stephen J. Morse

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No abstract provided.

Inevitable Mens Rea, Stephen J. Morse

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No abstract provided.

Bringing Moral Values Into A Flawed Plea Bargaining System, Stephanos Bibas

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No abstract provided.

Of Property And Anti-Property, Abraham Bell, Gideon Parchomovsky

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Private property is widely perceived as a potent prodevelopment and anticonservationist force. The drive to accumulate wealth through private property rights is thought to encourage environmentally destructive development; legal protection of such property rights is believed to thwart environmentally friendly public measures. Indeed, property rights advocates and environmentalists are generally described as irreconcilable foes. This presumed clash often leads environmentalists to urge public acquisition of private lands. Interestingly, less attention is paid to the possibility that the government may prove no better a conservator than private owners. Government actors often mismanage conservation properties, collaborating with private developers to dispose of …

The Case For Repealing The Corporate Alternative Minimum Tax, Terrence R. Chorvat, Michael S. Knoll

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No abstract provided.

Information Wants To Be Free: Intellectual Property And The Mythologies Of Control, R. Polk Wagner

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This article challenges a central tenet of the recent criticism of intellectual property rights: the suggestion that the control conferred by such rights is detrimental to the continued flourishing of a public domain of ideas and information. I argue that such theories understate the significance of the intangible nature of information, and thus overlook the contribution that even perfectly controlled intellectual creations make to the public domain. In addition, I show that perfect control of propertized information - an animating assumption in much of the contemporary criticism - is both counterfactual and likely to remain so. These findings suggest that …