Digital Commons Network^™

The Bill Of Rights As An Exclamation Point, Gary S. Lawson

Faculty Scholarship

Akhil Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights")' is one of the best law books of the twentieth century. That is not surprising, as it grows out of two of the best law review articles of the twentieth century' and was written by one of the century's premier legal scholars. I have been an unabashed Akhil Amar fan ever since our overlapping law school days more than fifteen years ago, and I am thrilled to have my perspicacity and good judgment vindicated by the publication of this remarkable work.

Taking Notes: Subpoenas And Just Compensation, Gary S. Lawson

Faculty Scholarship

Few cases from the October 1997 Supreme Court term received as much public attention as Swidler & Berlin v United States, which held that the attorney-client privilege survives the death of the client in federal criminal proceedings. If one focuses solely on the issue actually decided in the case, that degree of attention is surprising. The issue had not generated a split among the federal circuits, and there were relatively few decisions-federal or state-squarely on point. The Court's holding was thus unlikely to have a major impact on American law; the paucity of prior case law demonstrates that the question …

The Last Resort: The Use Of Physical Restraints In Medical Emergencies, George J. Annas

Faculty Scholarship

Public awareness of the use of restraints in medicine has been greatly heightened by a five-part investigative series on physical restraints in psychiatric hospitals by the Hartford Courant and reaction to it by Connecticut's U.S. senators, Joseph Lieberman and Christopher Dodd. In October 1998 the Courant 's 50-state survey identified 142 patients who had died while in restraints or seclusion in the past decade, and the total number is probably much higher. The newspaper advocated the need for national standards for the use of restraints, impartial oversight, and accountability “for behavior that is cruel and even criminal.” The use of …

Review Of The Year Books Of Richard Ii: 1382-1383 By Samuel E. Thorne & George F. Deiser, Eds., David J. Seipp

Faculty Scholarship

Of the making of Year Books there is no end. Three scholarly enterprises - the Rolls Series, Selden Society, and Ames Foundation - have undertaken to provide modern editions and translations of medieval English Year Books, the law French reports of oral pleading and judicial dialogue in lawsuits heard in the Common Bench and other common law courts. The present volume fills a gap in the most recent of these efforts, that of the Ames Foundation of Harvard Law School to print the surviving manuscript Year Books of the reign of Richard 11 (1377-1399). This volume, the sixth year of …

Utah's Grand Staircase: The Right Path To Wilderness Preservation?, James R. Rasband

Faculty Scholarship

No abstract provided.

The Public Trust Doctrine: A Tragedy Of The Common Law, James R. Rasband

Faculty Scholarship

No abstract provided.

Optimal Timing And Legal Decisionmaking: The Case Of The Liquidation Decision In Bankruptcy, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Until the firm is sold or a plan of reorganization is confirmed, Chapter 11 entrusts a judge with the decision of whether to keep a firm as a going concern or to shut it down. The judge revisits this liquidation decision multiple times. The key is to make the correct decision at the optimal time. This paper models this decision as the exercise of a real option and shows that it depends critically on particular types of information about the firm and its industry. Liquidations take place too soon if we merely compare the liquidation value of the assets with …

Rethinking The Uniformity Norm In Commercial Law: Optimal Institutional Design For Regulating Incomplete Contracts, Robert E. Scott

Faculty Scholarship

This paper begins with the claim that the state's primary role in uniformly enforcing commercial contracts is to regulate incomplete contracts efficiently. This role requires the state to perform two interdependent but conceptually distinct functions. The first is an interpretive function – the task of correctly (and uniformly) interpreting the meaning of the contract terms chosen by parties to allocate contract risk. The second is a standardizing function – the task of creating broadly suitable default rules or assigning standard meanings to widely used contract terms. Correct interpretation argues for a "textualist" or plain meaning interpretation of the express terms …

In Defense Of The Incorporation Strategy, Jody S. Kraus, Steven D. Walt

Faculty Scholarship

Contract law must provide rules for interpreting the meaning of express terms and default rules for filling contractual gaps. Article 2 of the Uniform Commercial Code provides the same response to both demands: It incorporates the norms of commercial practice. This "incorporation strategy" has recently come under attack. Although the incorporation strategy for gap-filling seems to have survived criticism, the incorporation strategy for interpretation remains heavily criticized. Critics charge that the expected rate of interpretive error under an incorporationist interpretive regime is so excessive that almost any plain meaning regime would be preferable.

The attack on the incorporation strategy for …

Privatization And Corporate Governance: The Lessons From Securities Market Failure, John C. Coffee Jr.

Faculty Scholarship

Should privatization be "fast" or "slow"? Should policymakers adopt a "Damn the torpedoes, full speed ahead" approach that accepts the inevitability of some overreaching by controlling shareholders, but justifies this cost as necessary to realize and expedite the efficiency gains incident to privatization? Or should privatization proceed more cautiously because of the risks of market failure and political corruption that may result when control seekers are tempted to bribe and seduce the judicial and regulatory systems to achieve the private benefit of control? These tempting private benefits arise, of course, precisely to the extent that privatization preceded the creation of …

The Limits Of Discipline: Ownership And Hard Budget Constraints In The Transition Economies, Roman Frydman, Cheryl W. Gray, Marek P. Hessel, Andrzej Rapaczynski

Faculty Scholarship

This paper, based on a large sample of mid-sized manufacturing firms in the Czech Republic, Hungary and Poland, argues that the imposition of financial discipline is not sufficient to remedy ownership and governance-related deficiencies of corporate performance. The study offers three main conclusions. First, we find that state enterprises represent a higher credit risk both because of their inferior economic performance and because of their lesser willingness or propensity to meet their payment obligations. Second, the brunt of the state firms' lower creditworthiness is borne by their state creditors, as state enterprises deflect the higher risk away from private creditors. …

The Past, Present And Future Of Title Vi Of The Civil Rights Act As A Tool Of Environmental Justice, Michael B. Gerrard, Nicholas Johnson, Peggy Shepard, Melva J. Hayden, Sheila Foster, Elizabeth Georges

Faculty Scholarship

Mr. Michael Gerrard: I am going to try to do something a little unconventional. After hearing some remarks from Professor Johnson, I will try to start a dialogue. I have been requested to ask very tough questions of our panelists, so I will do that in the hope of drawing all of you in the audience into the dialogue. First, we will hear some remarks from Professor Nicholas Johnson of Fordham University School of Law.

The Legal And The Ethical In Legal Ethics: A Brief Rejoinder To Comments On The Practice Of Justice, William H. Simon

Faculty Scholarship

We have here, not the clash of opposites, but a series of family quarrels within what you might call the Party of Aspiration in legal ethics. My seven allies and I all favor lawyers' ethic of more complex judgment, and more responsibility to nonclients than the currently dominant one. The differences among us are not large from the broadest perspective, but they involve issues that are quite important to the elaboration of the sort of alternative ethic we would like to see.

I am enormously grateful for the care and attention the commentators have taken. They have frequently stated my …

Verification Institutions In Financing Transactions, Ronald J. Mann

Faculty Scholarship

One of the most common problems in commercial transactions is the resolution of information asymmetries, situations in which one party to the transaction knows more about a relevant fact than the other party. The natural response of the disadvantaged party is to attempt to investigate the transaction for itself – to investigate the matter with "due diligence" – but often such an investigation will be expensive and, however diligently undertaken, leave the truth of the matter uncertain. A law-centered approach to the problem would call for the development of warranties and covenants that the party with superior information would give …

The Future As History: The Prospects For Global Convergence In Corporate Governance And Its Implications, John C. Coffee Jr.

Faculty Scholarship

What forces explain corporate structure and shareholder behavior? For decades this question has gone unasked, as both corporate law scholars and practitioners tacitly accepted the answer given in 1932 by Adolf Berle and Gardiner Means that the separation of ownership and control stemming from ownership fragmentation explained and assured shareholder passivity. Over this decade, however, corporate law scholars have recognized that this standard answer begs an essential prior question: if ownership fragmentation explains shareholder passivity, what explains ownership fragmentation? Although the Berle and Means model assumed that large-scale enterprises could raise sufficient capital to conduct their operations only by attracting …

The Place Of Victims In The Theory Of Retribution, George P. Fletcher

Faculty Scholarship

Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment.

Admittedly, victims and their sentiments …

Issue Advocacy: Redrawing The Elections/Politics Line, Richard Briffault

Faculty Scholarship

In the closing weeks of the 1996 election, Montana's airwaves were flooded with the following television advertisement:

Who is Bill Yellowtail? He preaches family values, but he took a swing at his wife. Yellowtail's explanation? He 'only slapped her,' but her nose was broken. He talks law and order, but is himself a convicted criminal. And though he talks about protecting children, Yellowtail failed to make his own child support payments, then voted against child support enforcement. Call Bill Yellowtail and tell him we don't approve of his wrongful behavior. Call (406) 443-3620.

The anti-Yellowtail ad, financed by an organization …

Discontinuous Tradition Of Sentencing Discretion: Koon's Failure To Recognize The Reshaping Of Judicial Discretion Under The Guidelines, The, Ian Weinstein

Faculty Scholarship

Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise …

Are We To Be A Nation?: Federal Powers Vs "States’ Rights" In Foreign Affairs, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Codification And Right Answers, Andrew P. Morriss

Faculty Scholarship

Attempting to survey the entire sweep of the nineteenth-century American codification debate is well beyond the scope of this article. Here, I will concentrate on what I view to be the most interesting portion—the debate provoked by draft codes prepared by David Dudley Field for New York during the 1860s. Field's drafts formed the basis for the codes ultimately adopted in Dakota Territory, California, and Montana as well as sparking years of often heated debate in New York.

I concentrate on the debate over the Field Codes, to the exclusion of the successful codifications in Georgia and Louisiana and unsuccessful …

Disestablishing Local School Districts As A Remedy For Educational Inadequacy Note, Aaron J. Saiger

Faculty Scholarship

Most state constitutions recognize a right to education, but courts have been hard pressed to respond to violations of that right. Some state courts have imposed financial and substantive reforms, only to see their implementation miscarry as educational deficiencies stubbornly persist. Other state courts, fearing such outcomes, instead treat education claims as nonjusticiable political questions; in these states, public education is a right with no remedy. This Note argues that courts should instead base remedies on state statutes that permit states to disestablish-i.e., to withdraw authority from-deficient school districts. Disestablishment, like other structural remedies, is largely self-implementing and avoids judicial …

Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin

Faculty Scholarship

On August 20, 1789, Massachusetts Federalist Fisher Ames rose to address the House of Representatives in one of his rare contributions to the debate on the Bill of Rights. 1 The day before, sitting as a Committee of the Whole, the House had concluded its brief discussion of the proposed religion amendment to the federal Constitution by agreeing to New Hampshire Representative Samuel Livermore's formula that "Congress shall make no laws touching religion, or infringing the rights of conscience." 2 Now, on the 20th, before the House could formally adopt Livermore's language, Representative Ames proposed a different wording. He moved …

Restoring Americans' Privacy In Electronic Commerce Symposium - The Legal And Policy Framework For Global Electronic Commerce: A Progress Report, Joel R. Reidenberg

Faculty Scholarship

In the United States today, substance abusers have greater privacy than web users and privacy has become the critical issue for the development of electronic commerce. Yet, the U.S. government’s privacy policy relies on industry self-regulation rather than legal rights. This article argues that the theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices. Together the flawed theory and data scandals demonstrate the sophistry of U.S. policy. The article then examines the comprehensive legal rights approach to data protection that has been adopted by governments around the world, most …

Restoring Vitaility To State And Local Politics By Correcting The Excessive Independance Of The Supreme Court, Paul D. Carrington

Faculty Scholarship

This Article endorses the view of such political "conservatives" as Robert Bork, Pat Buchanan, Orrin Hatch, and Ed Meese that the Constitution of the United States is deeply flawed in conferring too large a political role on life-tenured Supreme Court Justices. It argues that a constitutional amendment to correct excessive judicial independance is long overdue, a conclusion, it contends, that ought be shared by all who believe, as the author does, that the right to self-government is the parent right on which our civil liberties and the market economy ultimately depend and that healthy institutions of self-government require substantial devolution …

The Inherent Irrationality Of Judgment Proofing, Steven L. Schwarcz

Faculty Scholarship

In recent articles in the Yale Law Journal and the Stanford Law Review, Professor Lynn M. LoPucki has sparked much academic discussion arguing that recent developments in corporate law have led to an erosion in the system of corporate liability, such that it might one day prove impotent. LoPucki has argued that transactions such as asset securitizations, sale-leasebacks, and corporate structures in which liabilities are placed in asset-poor subsidiaries are driving this change. One early critic to the LoPucki thesis, Professor James J. White, has argued that empirical data show no evidence of increasing use of judgement proofing techniques. In …

Judgment Proofing: A Rejoinder, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Rethinking Freedom Of Contract: A Bankruptcy Paradigm, Steven L. Schwarcz

Faculty Scholarship

This Article tests the limits of private contracting by examining what it means to contract about bankruptcy. Bankruptcy law if governed by a statutory code that defines the relationship between debtors and creditors when a debtor enters the bankruptcy regulatory scheme. May debtors and creditors contract in advance to change that relationship? Or would these contracts be "Faustian" bargains that the state should not enforce? Both courts and scholars are in conflict, yet the answer is critical because it affects not only bankruptcy costs but also the structuring of corporate reorganizations and securitization transactions. I maintain that the threshold question--what …

The Impact On Securitization Of Revised Ucc Article 9, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Rationing Justice—What Thomas More Would Say, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Police-Ization Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

This essay will briefly review the background of the use of the armed forces in a police capacity, discuss the growth of that role in the I980s and 1990s, and forecast an even greater expansion into that role in the near future due to the emerging threat of "catastrophic terrorism." It will contend that this increased reliance on military resources for policing is not in the interest of either the armed forces or the public. Finally, it will make some observations with a view towards minimizing the dangers of police-ization of the military while ensuring the Nation's public safety.