Digital Commons Network^™

A Framework For Analyzing Legal Policy Towards Proxy Contests, Lucian Arye Bebchuk, Marcel Kahan

Faculty Articles

In this Article, the authors develop a framework for analyzing the desirable legal policy towards proxy contests and apply this framework to assess the rules governing the allocation of costs in proxy contests. The authors' normative standard is the maximization of social wealth. Proxy rules affect social wealth in three ways: they influence who will engage in proxy contests, they have an impact on who wins proxy contests, and they affect ex ante managerial behavior. Taking these effects into account, the authors examine how the three main dimensions of choice in the design of proxy rules--success contingency, neutrality, and the …

Specialized Adjudication, Rochelle C. Dreyfuss

Faculty Articles

It has been suggested that Congress should alleviate the federal court docket crisis by establishing a series of specialized courts with limited jurisdiction over particular areas. Specialization courts, in theory, enable the judiciary to meet the US' adjudication needs effectively and may even produce benefits of its own. However, the specialized court proposal is not without its problems. Since the jurisdiction of the court must be narrow and defined with precision, the judges would get a parochial view of the legal landscape that could lead to distorted decision making. Problems can be minimized through the choice of specialty fields and …

Madison's Nightmare, Richard B. Stewart

Faculty Articles

Madison identified the problem of factional domination in territorially limited government. The growth of the national regulatory welfare state, however, has spawned a new form of factional domination. By an irony of inversion, Madison's centralizing solution to the problem of faction has produced Madison's Nightmare: a faction-ridden maze of fragmented and often irresponsible micropolitics within the government. The post-New Deal constitutional jurisprudence of majoritarian politics has helped produce this result, because the demands for national regulatory and spending programs have outstripped the capacity of the national legislative process to make decisions that are accountable and politically responsive to the general …

The Independence Of Judges: The Uses And Limitations Of Public Choice Theory, Richard A. Epstein

Faculty Articles

How do judges behave in deciding cases? The question seems to be peculiarly immune to the ordinary techniques of social science analysis. While public choice theory in particular has achieved important breakthroughs in understanding legislative behavior, it has not achieved similar successes in dealing with judicial behavior. Yet, in an odd sense, its inability to provide us with strong predictions as to how judges behave should be regarded as a backhand confirmation of the theory, and not as its refutation. Given the set of institutional constraints under which judges routinely labor, the basic assumption of public choice theory-that self interest …

The Paradox Of Civil Rights, Richard A. Epstein

Faculty Articles

There is a curious duality in the status of civil rights in the United States: massive political support for antidiscrimination legislation but little economic evidence to show how or why it does any good.

The Uneasy Case Against Intracircuit Nonacquiescence: A Reply, Samuel Estreicher, Richard L. Revesz

Faculty Articles

In their Comment on our article, two of the lead counsel representing the plaintiff class in the pending Stieberger v. Sullivan litigation against the Social Security Administration (SSA) articulate the view that intracircuit nonacquiescence is per se unlawful and may be routinely subject to court injunctions regardless of the reasonableness of the agency's litigation position or the extent of disagreement among the courts of appeals over the merits of its substantive policy. The commentators' argument rests on two premises that are fundamentally inconsistent with central features of our Federal legal system. Their conception of the regional courts of appeals as …

Reconsidering Efficient Tort Rules For Personal Injury: The Case Of Single Activity Accidents, Jennifer H. Arlen

Faculty Articles

Despite the expenditure of considerable effort, scholars have been unable to develop tort rules to govern serious physical injuries to strangers that satisfy the Pareto criterion without resorting to theoretical devices that appear unrealistic even in the rarefied atmosphere of economic models. An analysis of single activity accidents demonstrates that expanding the economic model of accident law to reflect the reciprocal nature of the risks that the participants in such activities impose on each other enables the design of tort rules for the resulting physical injuries that satisfy the Pareto criterion without resort to unrealistic theoretical devices. Because most tortious …

Public Policy Limits On Tax Benefits: Bob Jones Revisited, Harvey P. Dale

Faculty Articles

In Bob Jones University v. United States, the Supreme Court denied charitable tax-exempt status to schools which discriminated against blacks. The majority opinion, by Chief Justice Burger, uses a simple syllogism. As its first premise, it interprets I.R.C § 501(c)(3) as resting on "certain common law standards of charity - namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy." As its second premise, it finds that "racial discrimination in education violates a most fundamental national public policy .... " From these premises, it concludes that the institutions in question …

Post-Modern Art And The Death Of Obscenity Law, Amy M. Adler

Faculty Articles

In 1973, in Miller v. California,' the Supreme Court wrested from the "tortured history" of its obscenity doctrine the modern constitutional definition of "obscenity." Miller set forth a new test to distinguish sexually explicit art from obscenity, protecting such art only if it demonstrates "serious . . . artistic . . . value."" Yet Miller was drafted at a radical turning point in the history of art, and the new art that has arisen since Miller has rendered standards such as "serious artistic value" obsolete. This new art-Post-Modern art'-rebels against the demand that a work of art be 'serious, or …

In Praise Of Divided Government, Richard A. Epstein

Faculty Articles

When I think of the important periods of unified government, I think of the New Deal and of the Great Society. In my view these are fitting indictments of the principle of unified government because the legislation that they enacted has been enormously destructive and detrimental to human welfare. That is a political judgment, and an outspoken judgment, even if made by a law professor---one, I might add, whose views are likely to disqualify him permanently from any responsible position of political power in Washington. But there is something to be said for having some of us reside permanently outside …

The Supreme Court's Bifurcated Interpretation Of The Confrontation Clause, Daniel N. Shaviro

Faculty Articles

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him ..." Under a functional view, the clause prevents prosecutorial misconduct and increases the reliability of guilty verdicts by requiring that certain evidence be subject to in-court challenge before it can serve as the basis for a conviction. Under a formalistic view, the clause merely creates specific rules of the game for criminal trials - rules that are constitutionally mandated without regard to any policy. Many people prefer a functional view; others, a formalistic …

Specialized Courts And The Administrative Lawmaking System, Richard L. Revesz

Faculty Articles

The central purpose of this Article is to analyze the desirability of vesting the review of administrative action in specialized courts, and to assess the relative merits of different types of specialized courts. Part I presents the central arguments raised in favor of specialized courts. Part II discusses the varieties of specialized courts (courts currently in place, courts that once existed and were subsequently abolished, and various proposals), and sets forth a method by which to categorize such courts. In general, the academic literature has not paid proper attention to the different structures of specialized courts. As a result of …

How To Govern A City On A Hill: The Early Puritan Contribution To American Constitutionalism, John Witte Jr.

Faculty Articles

This Article explores briefly the constitutional ideas and institutions of seventeenth-century Puritan New England. It analyzes the constitutional ideas that the Puritans derived from their theological doctrines of covenant, church and state, and sin, and it examines the forms and functions of political and ecclesiastical government they devised in implementation of these ideas.

Challenging Law, Establishing Differences: The Future Of Feminist Legal Scholarship, Martha Albertson Fineman

Faculty Articles

I begin with my version of the ideally antagonistic interaction of feminist theory with the law. I locate my discussion between the extremes of grand theory and unique experience. I consider the central, pressing task of feminist theory to be challenging existing law and legal doctrines through the articulation and establishment of a theory of difference. In this essay I divide my discussion of the theory of difference into two sections. The first section concerns the theoretical and political necessity of establishing the differences between men and women. Articulation of the extent of this manifestation of difference illustrates that the …

The Declaration Of The Rights Of Man And Of Citizens Of 1789, The Reign Of Terror, And The Revolutionary Tribunal Of Paris, Vincent R. Johnson

Faculty Articles

Recently, Americans have been engaged in an effort to properly commemorate the bicentennial of the United States Constitution and Bill of Rights. If one is serious about that endeavor, it may be profitable to focus on the other bicentennial being celebrated this year in France. The early days of the French and American republics were intertwined, and it would be erroneous to think that the developments which then took place in the two countries can now fully be understood in isolation.

A number of legal aspects of the French Revolution are especially relevant to the American experience, therefore worth consideration. …

The Status Of The Diplomatic Bag: A Proposed United States Position, Jeffrey F. Addicott

Faculty Articles

The protections afforded diplomats, diplomatic missions, and diplomatic bags have been misused to sponsor or commit various criminal acts. This strikes at the heart of traditional concepts of international diplomatic relations. Use of the diplomatic bag to import and export prohibited or illegal items is particularly concerning, and the most disconcerting abuses are those that use the diplomatic bag to facilitate acts of terrorism.

All malum in se acts that abuse this diplomatic shield are objectionable. As such, it is necessary to examine the current legal status of the diplomatic bag and recent international efforts to re-examine that status. Conflicts …

Bank Control Of Title Insurance: Perils To The Public That Bank Regulators Have Ignored, Joyce Palomar

Faculty Articles

No abstract provided.

Reconsidering The Application Of Laches In Environmental Litigation, William Murray Tabb

Faculty Articles

No abstract provided.

Justice Brennan, Judge Bork And A Jurisprudence Of Original Values, Harry F. Tepker

Faculty Articles

No abstract provided.

Attorney As Interpreter: A Return To Babble, Bill Piatt

Faculty Articles

Attorneys should not represent their clients and simultaneously act as interpreters. The harm far outweighs the benefit when an attorney acts as an interpreter for a client in litigation. In 1970, the Second Circuit Court of Appeals in Negron v. New York determined that the Sixth Amendment's confrontation clause requires that non-English speaking defendants be informed of their right to simultaneous interpretation of proceedings at the government's expense, however the use of an interpreter is still at the trial court's discretion.

Courts will ordinarily not appoint an interpreter in the absence of a request to do so, but the failure …

Inadvisable Advice: Limits On Employers' Counseling Of Employees With Regard To Unfair Labor Practice Proceedings, John W. Teeter Jr

Faculty Articles

The National Labor Relations Board frequently interviews or subpoenas employees to help determine whether an employer has committed an unfair labor practice. Many employers, however, have advised their employees that they may refuse to cooperate with the Board's efforts. Professor Teeter argues that such advice has an inherent tendency to coerce employees and to frustrate the Board's vindication of their statutory rights. After reviewing the inconsistent approaches tribunals have taken to this problem, the author recommends that employers be prohibited from counseling employees regarding their participation in the Board's proceedings. Professor Teeter concludes that the Board itself should be the …

Navigating The Shoals Of ‘Use’ Immunity And Secret International Enterprises In Major Congressional Investigations: Lessons Of The Iran-Contra Affair, George Van Cleve, Charles Tiefer

Faculty Articles

In its Iran-Contra investigation, Congress faced legal challenges which evolved logically from the two-century long history of Congressional investigations, and yet at the same time were unmatched in their significance. One challenge concerned "use" immunity, and its employment when high advisers to the President faced parallel Congressional and criminal proceedings. A second concerned the investigation of a secret international "Enterprise," which, like similar enterprises, was established overseas to carry on international operations without public accountability, and was protected by multiple layers of secrecy sanctioned by law. This article addresses how history brought Congress to those challenges, and how Congress met …

The Deforestation Of The Brazilian Amazon: Law, Politics, And International Cooperation, Henry Mcgee, Kurt Zimmerman

Faculty Articles

This article discusses the Brazilian Amazon rain forest and its remarkable biological diversity. Many scientists believe the world's largest jungle serves as a regional and perhaps even "global thermostat." It is therefore essential that vigorous efforts be directed toward its preservation. This article will examine Brazilian attitudes toward its preservation, and possible solutions to the forest destruction with reference to domestic and international law.

The First Amendment In An Age Of Paratroopers, David Skover, Ronald Collins

Faculty Articles

As the lead piece in a Colloquy entitled The First Amendment and the Paratroopers' Paradox, this article argues that today's free speech theory is largely grounded in 18th Century fears of government's tyrannical censorship. This theory is ill-equipped to deal with a distinct tyranny in 21st Century America, a tyranny playing upon the public's insatiable appetite for amusement. Those who venture to develop free speech principles to suit a new cultural environment are the First Amendment paratroopers of our time, the ones who realize that we cannot retain our old constitutional prerogatives in a transformed world. The Paratroopers' Paradox: To …

Moratorium On Maltzman: An Appeal To Reason, Mark B. Sobell, Linda C. Sobell

Faculty Articles

Maltzman's comment on Cook (1985), which appears elsewhere in this issue, is an unveiled attempt to resurrect the same allegations about our research that he made 7 years ago. None of the allegations are new! Over the past 7 years, those allegations have been the topic of 5 separate inquiries, in each of which we were vindicated. In this response, we review the multiple inquiries and we show how Maltzman continues to (1) cite our work out of context, (2) make false assumptions about the inquiries and our procedures and (3) disregard evidence contradicting his assertions. He relies on data …

Nonacquiescence By Federal Administrative Agencies, Samuel Estreicher, Richard L. Revesz

Faculty Articles

The status of agency nonacquiescence in our legal system remains uncertain. Despite considerable writings on the subject, there has been no systematic evaluation of the practice's costs and benefits. Neither has there been a serious proposal for reducing, in a manner consistent with the respective institutional responsibilities of an agency and its reviewing court, the debilitating tensions between these two institutions that nonacquiescence engenders. Our study principally addresses these issues. Section I is primarily definitional. First, it establishes that the Supreme Court's refusal to apply nonmutual collateral estoppel against the federal government, in United States v. Mendoza, does not, by …

Sharing Damages Among Multiple Tortfeasors, Lewis A. Kornhauser, Richard L. Revesz

Faculty Articles

In this Article, we show that many different classes of rules of apportionment are being applied by common law courts and advocated by commentators. The question of which rules to apply in particular situations is fraught with confusion. This Article's conclusion that several common law rules of apportionment are not efficient has more than merely descriptive significance. First, in the absence of overriding goals, the legal system should favor efficient rules; while efficiency might not be the only relevant goal, it clearly is a cognizable one. Thus, the efficiency properties of joint and several liability should be considered in evaluating …

An Economic Perspective On Stare Decisis, Lewis A. Kornhauser

Faculty Articles

In this essay, I propose to take legal reasoning seriously. I focus on a limited aspect of the practice of precedent, often called stare decisis. In section II, I frame the problem in two respects. First, I sketch the substantive contours of a practice that, paradoxically, demands that a court adhere to a prior decision it believes wrong. Second, I suggest that justifications for stare decisis may vary with the institutional framework. Section III explicates the idea of a "wrongly decided" case. In section IV, I survey, from an economic perspective, jurisprudential justifications for the practice. Each of the final …

Fairness Opinions: How Fair Are They And What Can Be Done About It?, Lucian Arye Bebchuk, Marcel Kahan

Faculty Articles

Fairness opinions are a regular feature of every major corporate transaction. We analyze the conflict of interest problems that afflict fairness opinions and the extent to which courts should give weight to such opinions.

Liberating Progress And The Free Market From The Specter Of Tort Liability (Book Review), Vincent R. Johnson

Faculty Articles

That all is not well with tort law cannot seriously be doubted. In Liability: The Legal Revolution and Its Consequences, Peter Huber attempts to chronicle the changes in tort doctrine over the past thirty or so years that have brought tort law to its present crisis, and to prescribe sweeping remedial actions capable of defining a more intelligent course of accident compensation. Drastic measures are necessary, Huber argues, because of the magnitude of the emergency.

Huber’s critique of modern tort law is always provocative and often perceptive and enlightening. The book identifies many jurisprudential trouble-spots which cry out for reform, …