Digital Commons Network^™

Anticipating Litigation In Contract Design, Robert E. Scott, George G. Triantis

Faculty Scholarship

Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design in a world of costly litigation. We examine the efficiency of investment at the front end and back end of the contracting process, where we focus on litigation as the back-end stage. In deciding whether to express their obligations in precise or vague terms, contracting parties implicitly allocate costs between the front and back end. When the …

Connecticut: Ace Equip. Sales, Inc. V. Buccino, Michael J. Graetz

Faculty Scholarship

Ace Equip. Sales, Inc. v. Buccino, 869 A.2d 626 (Conn. 2005) (reversing adoption of the civil law rule that afforded an inherent riparian right by virtue of abutting property ownership).

Legal Protection Of Technological Measures Protecting Works Of Authorship: International Obligations And The Us Experience, Jane C. Ginsburg

Faculty Scholarship

The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial …

Patents, Venture Capital, And Software Start-Ups, Ronald J. Mann, Thomas W. Sager

Faculty Scholarship

This paper analyzes the relation between the patenting behavior of startup firms and the progress of those firms through the venture capital cycle. Linking data relating to venture capital financing of software startup firms with data concerning the patents obtained by those firms, we find significant and robust positive correlations between patenting and several variables measuring the firm's performance (including number of rounds, total investment, exit status, receipt of late stage financing, and longevity). The data also show that (1) only about one in four venture-backed software firms acquired even one patent during the period of the study; (2) patenting …

Legal Socialization Of Children And Adolescents, Jeffrey Fagan, Tom Tyler

Faculty Scholarship

Research on children and the law has recently renewed its focus on the development of children's ties to law and legal actors. We identify the developmental process through which these relations develop as legal socialization, a process that unfolds during childhood and adolescence as part of a vector of developmental capital that promotes compliance with the law and cooperation with legal actors. In this paper, we show that ties to the law and perceptions of law and legal actors among children and adolescents change over time and age. We show that neighborhood contexts and experiences with legal actors shape the …

An Analysis Of The Nypd's Stop-And-Frisk Policy In The Context Of Claims Of Racial Bias, Andrew Gelman, Alex Kiss, Jeffrey Fagan

Faculty Scholarship

Recent studies by police departments and researchers confirm that police stop racial and ethnic minority citizens more often than whites, relative to their proportions in the population. However, it has been argued stop rates more accurately reflect rates of crimes committed by each ethnic group, or that stop rates reflect elevated rates in specific social areas such as neighborhoods or precincts. Most of the research on stop rates and police-citizen interactions has focused on traffic stops, and analyses of pedestrian stops are rare. In this paper, we analyze data from 175,000 pedestrian stops by the New York Police Department over …

The 527 Problem ... And The Buckley Problem, Richard Briffault

Faculty Scholarship

In the world of campaign finance, 2004 was without a doubt the year of the 527 organization. No other aspect of campaign financing received as much press coverage or public attention as the rise of the 527s. Expenditures by 527s – named after the section of the Internal Revenue Code under which they are organized – active in federal elections amounted to at least $405 million, accounting for more than one-tenth of total federal election spending and perhaps twenty to twenty-five percent of spending in the presidential campaign. Federal Election Commission ("FEC") Chairman Scott E. Thomas recently observed that "[there …

Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits

Faculty Scholarship

This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine …

The Political Economy Of International Sales Law, Clayton P. Gillette, Robert E. Scott

Faculty Scholarship

The United Nations Convention on Contracts for the International Sale of Goods, or CISG, has been adopted by more than 60 countries in an effort to harmonize the law that applies to international sales contracts. In this paper, we argue that the effort to create uniform international sales law (ISL) fails to supply contracting parties with the default terms they prefer, thus violating the normative criterion that justifies the law-making process for commercial actors in the first instance. Our argument rests on three claims. First, we contend that the process by which uniform ISL is drafted will dictate the form …

The Story Of Vermont Yankee: A Cautionary Tale Of Judicial Review And Nuclear Waste, Gillian E. Metzger

Faculty Scholarship

This Essay explores the puzzle of Vermont Yankee v. NRDC. Vermont Yankee stands as a definitive rejection of judicial efforts to control burgeoning informal rulemaking by adding to the procedural requirements contained in the Administrative Procedure Act. Yet judicial expansion of the APA's procedural requirements has continued apace, and the Court's simultaneous sanction of searching substantive scrutiny sits oddly with its excoriation of the D.C. Circuit for that court's perceived procedural excesses. To understand Vermont Yankee, the Essay puts the decision in its administrative and judicial context, exploring the case law and practical dilemmas facing administrators, advocates, and judges as …

Legal Status And Rights Of Undocumented Workers: Advisory Opinion Oc-18, Sarah H. Cleveland

Faculty Scholarship

In Advisory Opinion OC-18 of September 17, 2003, the Inter-American Court of Human Rights ruled that international principles of nondiscrimination prohibit discriminating against undocumented migrant workers in the terms and conditions of work. The Court acknowledged that governments have the sovereign right to deny employment to undocumented immigrants, but held that such workers are equally protected by human rights in the workplace once an employment relationship is initiated. In other words, states may not further their immigration policies by denying basic workplace protections to undocumented employees.

Complexity Of School-Police Relationships Challenge Special Needs Doctrine, Joshua Gupta-Kagan

Faculty Scholarship

On November 5, 2003, concern regarding suspected drug activity led to a massive police search of Stratford High School in the Berkeley School District, north of Charleston, South Carolina. (See Police, School District Defend Drug Raid, available at http://www.cnn.com/2003/US/South/11/07/school.raid/index.html.) Fourteen police officers assumed strategic positions inside and outside the school. Accompanied by a drug-sniffing clog, officers. Some with guns drawn, secured a school hallway and ordered more than I 00 students to get on their knees and face the wall, handcuffing at least 12 who failed to immediately obey the police orders. Alerted by the clog. police physically searched students, …

Medellin V. Dretke: Federalism And International Law, Curtis Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This evening, we're going to have, at the very least, a discussion which may blossom into a debate-we will see as the evening progresses. However one characterizes the event, we're here to discuss the Medellin v. Dretke case and, more broadly, we are going to be discussing cutting edge issues of international law, including the operation of self-executing treaties and state legal systems, the weight to be given to judgments of international courts interpreting such treaties, and the duties of state and federal judiciaries in this process, all in the context of death penalty cases. Let me give you a …

An Idea Whose Time Has Come – But Where Will It Go, Jane C. Ginsburg

Faculty Scholarship

This Reply picks up where Professor Miller's bold proposal leaves off: with the private international law and international copyright implications of state common law protection for idea-submitters. We will first address the compatibility of the proposal with international copyright norms disqualifying ideas from copyright protection. We will then turn to the consequences of the proposal for a federal system. Professor Miller's article thoroughly examines one aspect of the federalism problem, that of federal copyright policy preemption of statebased idea protection. But in advocating a regime constricted to the fifty separate states, not all of whose courts choose to secure idea …

Conflicts Of Interest In Publicly-Traded And Closely-Held Corporations: A Comparative And Economic Analysis, Zohar Goshen

Faculty Scholarship

Conflicts of interest in corporate law can be addressed by two main alternatives: a requirement of a majority of the minority vote or the imposition of duties of loyalty and fairness. A comparison of Delaware, the UK, Canada, and Israel reveals that while the conflicts of interest problem within publicly-traded corporations receives different treatment in the different jurisdictions — either a fairness rule or a majority of the minority rule — closely-held corporations receive the same treatment of an imposition of duties of loyalty and fairness. This article explains this finding, demonstrating that determining which of these rules is adopted …

Executive Compensation: If There's A Problem, What's The Remedy? The Case For "Compensation Discussion And Analysis", Jeffrey N. Gordon

Faculty Scholarship

High levels of executive compensation have triggered an intense debate over whether compensation results primarily from competitive pressures in the market for managerial services or from managerial overreaching. Professors Lucian Bebchuk and Jesse Fried have advanced the debate with their recent book, Pay Without Performance: The Unfulfilled Promise of Executive Compensation, which forcefully argues that current compensation levels are best explained by managerial rent-seeking, not by arm's-length bargaining designed to create the optimum pay and performance nexus. This paper expresses three sorts of reservations with their analysis and advances its own proposals. First, enhancing shareholder welfare is not, as a …

The Une Anticommons: Why The 1996 Telecom Reforms Blocked Innovation And Investment, Michael A. Heller

Faculty Scholarship

The United States is losing its competitive edge in telecommunications partly because of FCC mistakes in fragmenting property rights in, and in the regulatory oversight of local telephone facilities and services. As with postsocialist transition, reformers created a "tragedy of the anticommons" in which too many owners and regulators each can block the others' investments and all players forego innovation. By forcing existing companies to unbundle network elements (UNEs) and sell them too cheaply, the FCC has created an industry where the players cannibalize the legacy network, divert resources to regulatory arbitrage, and have little incentive for bold new investments.

Takeovers In The Boardroom: Burke Versus Schumpeter, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

We are delighted to participate in a 25th anniversary assessment of Martin Lipton's 1979 article, Takeover Bids in the Target's Boardroom. This is a remarkably prescient article that demonstrates an uncanny ear for an emerging issue. From his vantage point inside targets' boardrooms – and, we assume, also from inside the nearby offices of investment bankers – Lipton spotted a gathering storm on the horizon and sought to channel the emerging issue of takeover policy in a direction that accorded with his own fundamental convictions as well as the interests of his clients. As every academic knows, early intervention …

The Peruvian Civil Code, Property And Plunder Time For A Latin American Alliance To Resist The Neo Liberal Order, Ugo Mattei

Faculty Scholarship

No abstract provided.

Corporate Responsibility: Ensuring Independent Judgment Of The General Counsel - A Look At Stock Options, Z. Jill Barclift

Faculty Scholarship

Recent corporate scandals and allegations of corporate fraud in public companies have most people asking how things went so wrong. When looking to assess blame for corporate malfeasance, many ask, “Where were the lawyers?” In several high-profile corporate fraud investigations, outside and in-house lawyers were criticized for not doing more to prevent corporate executives from violating the law, and several general counsels were charged with criminal misconduct by state and federal authorities. Why would the general counsel of a public corporation risk his or her career, reputation, and criminal prosecution to assist executives in perpetuating corporate fraud? The answer may …

Defending Author-Essentialism, Jeffrey C. Goodman

Faculty Scholarship

Creationism is the view that fictional individuals such as Sherlock Holmes are contingently existing abstracta that come about due to the intentional activities of authors.  Author-essentialism is the stronger thesis that the author responsible for bringing a fictional individual into existence at a time is essential to the existence of that individual.  Takashi Yagisawa has recently attacked this view on the following grounds: author-essentialists rely on an ontological parallelism between fictional individuals and whole works of fiction, but this parallelism fails to obtain.  I here argue that Yagisawa’s grounds are weak.

Judicial Deference Or Bad Law? Why Massachusetts Courts Will Not Impose Municipal Liability For Failure To Enforce Restraining Orders, Carolyn Grose

Faculty Scholarship

The authors take up the challenge that was thrown down by the Ford v. Town of Grafton court. The first part of this Article examines the somewhat tortured and fascinating history of the Massachusetts Tort Claims Act. It then describes the arguments Catherine Ford made, how the court responded, and why it responded as it did. In Part II, Massachusetts' strong commitment to protecting and assisting victims of domestic violence is examined. A variety of legislative, executive and judicial initiatives that demonstrate commitment are described, but the Massachusetts General Laws Chapter 209A, the restraining order statute, is emphasized. The article …

Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca E. Bignami

Faculty Scholarship

No abstract provided.

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Faculty Scholarship

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

Facial Challenges And Federalism, Gillian E. Metzger

Faculty Scholarship

This Essay addresses the question of whether challenges to legislation as exceeding Congress' powers should be assessed on a facial or an as-applied basis, a question that rose to the fore in the Supreme Court's recent decision in Tennessee v. Lane. The Essay begins by arguing that what distinguishes a facial challenge is that it involves an attack on some general rule embodied in the statute. Such challenges can take a broader or narrower form, and thus the terms 'facial" and "as-applied" are best understood as encompassing a range of possible challenges rather than as mutually exclusive terms. The …

In The Shadow Of Delaware - The Rise Of Hostile Takeovers In Japan, Curtis J. Milhaupt

Faculty Scholarship

Despite longstanding predictions to the contrary, hostile takeovers have arrived in Japan. This Essay explains why and explores the implications of this phenomenon, not only for Japanese corporate governance, but also for our understanding of corporate law development around the world today. Delaware law figures prominently in the recent Japanese events. A highprofile battle for corporate control has just generated a judicial standard for takeover defenses that might be called a Unocal rule with Japanese characteristics. Meanwhile, ministy-endorsed takeover guidelines have been formulated that are heavily influenced by the familiar "threat" and "proportionality" tests under Delaware law, along with many …

Watchdog Or Demagogue? The Media In The Chinese Legal System, Benjamin L. Liebman

Faculty Scholarship

Over the past decade, the Chinese media have emerged as among the most influential actors in the Chinese legal system. As media commercialization and increased editorial discretion have combined with growing attention to social and legal problems, the media have gained incentives to expand their traditional mouthpiece roles in new directions. As a result, the media have emerged as one of the most effective and important avenues of citizen redress. Their role in the legal system, however, has also brought them increasingly into conflict with China's courts.

This Article examines the implications of the media's roles in the Chinese legal …

Tax Shelter Disclosure And Penalties: New Requirements, New Exposures, Mary A. Mcnulty, Robert D. Probasco

Faculty Scholarship

One of the primary weapons in the battle against tax shelters has been mandatory disclosure to the IRS. The American Jobs Creation Act of 2004 built on this approach by clarifying and making consistent the various disclosure requirements and strengthening penalties for non-disclosure. To uncover abusive transactions, Congress drew the boundaries of disclosure so broadly that even legitimate tax planning transactions are covered. To understand the dangers in the new rules, one must look at the broad range of transactions covered, the participants covered, and the harsh penalties for nondisclosure.

- Transactions Covered. The disclosure requirements apply to six categories …

A Pluralist Approach To Interpretation: Wills And Contracts, Kent Greenawalt

Faculty Scholarship

This account of legal interpretation focuses mainly on wills and contracts. It adopts a pluralist approach, one that treats a number of factors as potentially relevant and does not assume that all relevant factors necessarily reduce to one overarching inquiry that is the same whatever legal text is being interpreted.

Property, Michael A. Heller

Faculty Scholarship

This article argues that despite its seeming disintegration, property is more vibrant than ever — it is a field that has focused on understanding the formal and informal institutions by which society channels decision-making for scarce resources. Many exciting recent innovations in property theory have arisen through dialogue between US and Commonwealth scholars and legislatures. The article is organized as follows. The first part explains the focus on analytic property theory, which is posed in distinction to a jurisprudential approach. The second part introduces the familiar division of ownership into a trilogy of ideal types: private, commons, and state. The …