Digital Commons Network^™

What Clients Want, What Lawyers Need., Anita Bernstein

Faculty Scholarship

No abstract provided.

Looking Back At The Lawyering Process, Beatrice A. Moulton

Faculty Scholarship

No abstract provided.

Prohibiting "Good Faith Reports" Under The Uniform Mediation Act: Keeping The Adjudication Camel Out Of The Mediation Tent, Carol L. Izumi, Homer C. La Rue

Faculty Scholarship

No abstract provided.

How Does Your Positionality Bias Your Epistemology?, David Takacs

Faculty Scholarship

No abstract provided.

Theorizing Community Justice Through Community Courts, Jeffery Fagan, Victoria Malkin

Faculty Scholarship

Community justice practitioners argue that the justice system has long ignored its biggest clients-citizens and neighborhoods that suffer the everyday consequences of high crime levels. One response from legal elites has been a package of court innovations and new practices known as "community justice," part of a broader appeal to "community" and "partnership" common now in modern discourse on crime control. This concept incorporates several contemporary visions and expressions of justice within the popular and legal literatures: problem-solving courts (such as drug courts, mental health courts, domestic violence courts, gun courts, and, of course, juvenile courts); the inclusion of victims …

Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be. These gaps are unsurprising given the traditional definition of contract as embracing all promises that the law will enforce. Even a theory of contract law that focuses only on the enforcement of bargains must still consider the entire continuum from standard form contracts between firms and consumers to commercial contracts among businesses. No descriptive theory has yet explained a law of contract that comprehends such a broad domain. Normative theories that are grounded in a single …

Equality And The Forms Of Justice, Susan Sturm

Faculty Scholarship

Justice and equality are simultaneously noble and messy aspirations for law. They inspire and demand collective striving toward principle, through the unflinching comparison of the "is" and the "ought." Yet, law operates in the world of the practical, tethered to the realities of dispute processing and implementation. The work of many great legal scholars and activists occupies this unstable space between principle and practice. Owen Fiss is one such scholar, attempting to straddle the world of the here-and-now and the imagined and then deliberately constructed future, the contours of which have been established during the founding moments of our constitutional …

What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault

Faculty Scholarship

My role at this symposium is to provide a brief overview of the three-judge court's decision in McConnell v. FEC, review the opinions, piece together what the court actually decided, and see how the Bipartisan Campaign Reform Act of 2002 ("BCRA") now stands. I will try to do that briefly, while giving a few general comments about what the court's opinions tell us about the state of campaign finance law today. As a preliminary matter, the three-judge court's opinions provide us with two radically different world views – almost two different intellectual universes – for thinking about campaign finance …

Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon

Faculty Scholarship

Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Legal doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. Under current doctrine, the lawyer's responsibilities differ strongly depending on whether the representation is characterized as 'joint" representation of the organization 's constituents or "entity" representation. This Article argues that the choice between the two characterizations often has been arbitrary and that the underlying differences between them have been misunderstood. With respect to entity representation, it criticizes a prominent tendency in the …

Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon

Faculty Scholarship

Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.

The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the bar's …

Controlling Controlling Shareholders, Ronald J. Gilson, Jeffrey N. Gordon

Faculty Scholarship

The rules governing controlling shareholders sit at the intersection of the two facets of the agency problem at the core of public corporations law. The first is the familiar principal-agency problem that arises from the separation of ownership and control. With only this facet in mind, a large shareholder may better police management than the standard panoply of market-oriented techniques. The second is the agency problem that arises between controlling and non-controlling shareholders, which produces the potential for private benefits of control. There is, however, a point of tangency between these facets. Because there are costs associated with holding a …

Agora: Future Implications Of The Iraq Conflict: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The military action against Iraq in spring 2003 is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction, of the system of law governing the use of force that had evolved during the twentieth century. As with the great debates surrounding U.S. involvement in the two world wars, the establishment of the United Nations, and the challenges to UN Charter norms during the Cold War, this Journal seeks to provide a forum for reasoned and respectful treatment of legal issues that have aroused fierce passions.

Consensual Sex And The Limits Of Harassment Law, Carol Sanger

Faculty Scholarship

This chapter discusses an enormous achievement of the campaign against the harassment of working women, which is the establishment of a set of facts about sex at work that had previously been denied, mocked, and misunderstood. It is now understood that sex can be unwelcome, that unwelcome overtures are neither harmless nor fun, and that consent to sex demanded on the job does not shift the behavior from the category of unwanted sex to the category of the welcome. On the other hand, one of the most ferocious complaints against the establishment of sexual harassment as a legal wrong is …

Publishing Privacy: Intellectual Property, Self-Expression, And The Victorian Novel, Jessica Bulman-Pozen

Faculty Scholarship

The relationship between privacy and intellectual property has resurfaced with a twist at the turn of the twenty-first century. If Victorian authors regarded intellectual property as private, contemporary proposals instead urge us to regard private information as property. In response to technological developments that have facilitated unprecedented invasions of individuals’ privacy, some scholars have advocated legally classifying private information as a form of property. These scholars insist that the best way to respond to privacy violations, particularly corporate commodification of personal data, is to invest people with property rights that would furnish control over their personal information. Insofar as intellectual …

Achieving Balance In International Copyright Law, Jane C. Ginsburg

Faculty Scholarship

In 1996, the World Intellectual Property Organization (WIPO) adopted two related treaties, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty (the WIPO Treaties). Though now often referred to as the "WIPO Internet Treaties," the agreements emerged after five years of preparation, only the last two of which focused on a "digital agenda." These treaties, following on the 1994 World Trade Organization TRIPs Accord, have substantially expanded, and somewhat harmonized, the role of international copyright and neighboring rights norms in the international exchange of works of authorship and related productions. When enactment of the WIPO Treaties with their …

The Cyberian Captivity Of Copyright: Territoriality And Authors' Rights In A Networked World, Jane C. Ginsburg

Faculty Scholarship

In this essay, the point of view I wish to take is that of authors who create or disseminate works over digital networks. I believe that their situation reflects both perspectives. Like the Avignon popes and the fifth century Roman emperors, authors might be considered displaced persons, because others might cast their works into the digital Empyrean, disconnected from physical points of attachment to any particular jurisdiction. But, like the Germanic tribes that crossed the Rhine River late in December 406, at least some authors might also be considered the displacers, because they choose to exploit the newly-found technological irrelevance …

Employee Stock Ownership After Enron: Proceedings Of The 2003 Annual Meeting, Association Of American Law Schools Section On Employee Benefits, Norman P. Stein, Colleen E. Medill, Susan J. Stabile, Jeffrey N. Gordon, Louis H. Diamond, Damon Silvers, Patricia E. Dilley

Faculty Scholarship

This session is entitled "Employee Stock Ownership After Enron," and I assume that title has drawn into this room people who know something about either Enron or employee stock, or both. For our purposes, the Enron story has as its focus the Enron 401(k) plan, which was the principal retirement plan for most Enron employees. Employees could make elective contributions to the 401(k) plan, which offered nineteen investment options, one of which was Enron stock. The 401(k) plan also provided that Enron would match employee contributions up to 3 percent of compensation. Enron's match, however, was made in Enron stock. …

Governance Failures Of The Enron Board And The New Information Order Of Sarbanes-Oxley, Jeffrey N. Gordon

Faculty Scholarship

Analysis of the corporate governance crisis that manifested itself in the United States at the turn of the millennium requires separating its various strands. The Enron Corporation ("Enron") debacle and the dot corn bubble and collapse, for example, share some common elements but in other ways they are quite different. In both cases investors became aggressively enamored of an unsustainable business model. In the dot com case it was the belief that an innovator in a rapidly growing market could attain powerful first mover advantages that would produce an eventual cascade of profits, so that a current and increasing stream …

The Efficiency Of Controlling Corporate Self-Dealing: Theory Meets Reality, Zohar Goshen

Faculty Scholarship

Corporate self-dealing may be controlled either by legal rules or by the unconstrained forces of the market. The regulatory options include an absolute prohibition on self-dealing, a prohibition on voting with conflicting interests (the "majority of the minority" requirement), and an imposition of fairness duties (the 'fairness test"). Using an economic analysis, this Article presents a unique theoretical framework for evaluating the relative efficiency of the attempts to control self-dealing adopted by five countries: The United States (Delaware in particular), the United Kingdom, Canada, Germany, and Italy.

The Article's analysis of the self-dealing problem is based on the novel theory …

The Mechanisms Of Market Efficiency Twenty Years Later: The Hindsight Bias, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Twenty years ago we published a paper, "The Mechanisms of Market Efficiency," that sought to describe the institutional underpinnings of price formation in the securities market. Since that time, financial economics has moved forward on many fronts. The sub-discipline of behavioral finance has struggled to bring yet more descriptive realism to the study of financial markets. Two important questions are (1) how much has this new discipline changed our understanding of the efficiency and nature of the institutional mechanisms that set price in financial markets; and (2) how far does this discipline carry novel implications for the regulation of financial …

Managing A Correctional Marketplace: Prison Privatization In The United States And The United Kingdom, David Pozen

Faculty Scholarship

This article traces the recent history and development of privately operated prisons in the United States and the United Kingdom, and it compares their current role in the countries' correctional systems. The privatization movements of the U.S. and the U.K. were driven by similar factors, but the relative weight of these factors varied between the two. In the U.S., legal pressures to alleviate prison overcrowding and fiscal incentives to contract out prison construction were stronger, while in the U.K. the ideological and political aims of the governing party exerted more influence in stimulating privatization. America's experience with private prisons in …

The Sense And Nonsense Of Web Site Terms Of Use Agreements, Sharon Sandeen

Faculty Scholarship

This article examines the purpose, use and enforceability of TOUs. In so doing it looks beyond the common question of whether TOUs are enforceable to ask whether and under what circumstances TOUs are necessary. This article explores whether the nature of the Internet is so different from the brick-and-mortar world that TOUs are needed for web sites but not for retail stores. A review of many of the existing TOUs reveals that major differences exist in the number and nature of their provisions. On one extreme are the TOUs of companies like Disney, Barnes and Noble and Amazon that apparently …

Part-Time Legal Education: It‘S Not Your Parents’ Old Oldsmobile, Edwin J. Butterfoss

Faculty Scholarship

When I am asked to name my accomplishments as dean,' the one that often piques the listener's interest is "starting a weekend law program." Their reaction usually is along the lines of, "A weekend law program? That's different." But depending on to whom I am talking, that "uniform" response needs to be interpreted based on the tone of voice, facial expression, and other body language of the listener If I happen to be talking to a faculty member from another school, the translation is, "I hope my dean doesn't get a crazy idea like that and make me work on …

Institutionalization Of Mediation In Florida: At The Crossroads, Sharon Press

Faculty Scholarship

n this article, Press identifies some of the positive and negative impacts of institutionalization on mediation by reviewing some of the intended and unintended consequences of Florida's court-connected mediation experience. While institutionalization has had many positive impacts, there also are potential reasons for concern.

In this article, the author provides an overview of the historical development of mediation in Florida, describes the current status of mediation within the Florida court system, and details some of the positive and negative consequences of the institutionalization of mediation drawn from the Florida experience. The article concludes with initial reflections on what this means …

Privacy As A Legal Principle Of Identity Maintenance, Jonathan Kahn

Faculty Scholarship

This article considers how existing literature on privacy recognizes, constructs and otherwise implicates something the Anglo-American legal tradition recognizes as 'identity'. Integral to this concern is approaching privacy as a regulative principle for constructing and managing relations between the individual and three primary spheres of engagement: society, the market, and the state. Contemporary analyses of privacy tend to concentrate of how privacy protects the individual from state tyranny or the prying eyes of social busy bodies. Much less attention has been paid, however, to privacy as a principle for demarcating a space beyond the reach of market forces. As privacy …

The Station Nightclub Fire And Federal Jurisdictional Reach: The Multidistrict, Multiparty, Multiforum Jurisdiction Act Of 2002, Peter Adomeit

Faculty Scholarship

The Multidistrict, Multiparty, Multiforum Jurisdiction Act of 2002 has great potential for expediting The Station fire cases. The object of the Act is to place all of the cases from a mass disaster before a single judge, who can supervise discovery, then try the issue of liability, and either try or remand the issue of damages. How this new procedural tool will function is uncertain. The Act consolidates the power in one court to either urge the parties to accept a global settlement, or send the unresolved cases to trial. There are many unanswered questions. It is up to judges …

Privacy Property, Information Costs, And The Anticommons, Edward J. Janger

Faculty Scholarship

No abstract provided.

What If I Want My Kids To Watch Pornography? Protecting Children From ''Indecent'' Speech, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Making Sense Of Successor Liability, Marie T. Reilly

Faculty Scholarship

A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.

Frictions And Tax-Motivated Hedging: An Empirical Exploration Of Publicly-Traded Exchangeable Securities, William M. Gentry, David M. Schizer

Faculty Scholarship

As financial engineering becomes more sophisticated, taxing income from capital becomes increasingly difficult. We offer the first empirical study of a high profile strategy known as "taxfree hedging," which offers economic benefits of a sale without tnggering tax. We explore nontax costs that taxpayers face when hedging by issuing so-called "DECS," "PHONES," and other publicly-traded exchangeable securities. Focusing on 61 transactions between 1993 and 2001, we shed light on why taxpayers might prefer to hedge through private "over-the-counter" transactions: An offering of exchangeable securities is announced in advance and implemented all at once, triggering an almost 4 percent decline in …