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Constraining Dominant Shareholders' Self-Dealing: The Legal Framework In France, Germany, And Italy , Pierre-Henri Conac, Luca Enriques, Martin Gelter Jan 2007

Constraining Dominant Shareholders' Self-Dealing: The Legal Framework In France, Germany, And Italy , Pierre-Henri Conac, Luca Enriques, Martin Gelter

Faculty Scholarship

All jurisdictions supply corporations with legal tools to prevent or punish asset diversion by those, whether managers or dominant shareholders, who are in control. As previous research has shown, these rules, doctrines and remedies are far from uniform across jurisdictions, possibly leading to significant differences in the degree of investor protection they provide. Comparative research in this field is wrought with difficulty. It is tempting to compare corporate laws by taking one benchmark jurisdiction, typically the US, and to assess the quality of other corporate law systems depending on how much they replicate some prominent features. We take a different …


Rethinking Work And Citizenship, Jennifer Gordon, Robin A. Lenhardt Jan 2007

Rethinking Work And Citizenship, Jennifer Gordon, Robin A. Lenhardt

Faculty Scholarship

This Article advances a new approach to understanding the relationship between work and citizenship that comes out of research on African American and Latino immigrant low-wage workers. Media accounts typically portray African Americans and Latino immigrants as engaged in a pitched battle for jobs. Conventional wisdom suggests that the source of tension between these groups is labor competition or the racial prejudice of employers. While these explanations offer useful insights, they do not fully explain the intensity and longevity of the conflict. Nor has relevant legal scholarship offered a sufficient theoretical lens through which this conflict can be viewed. In …


Authorized Managerialism Under The Federal Rules— And The Extent Of Convergence With Civil-Law Judging, Thomas D. Rowe Jr. Jan 2007

Authorized Managerialism Under The Federal Rules— And The Extent Of Convergence With Civil-Law Judging, Thomas D. Rowe Jr.

Faculty Scholarship

This article, part of a symposium marking the fortieth anniversary of the United States District Court for the Central District of California, first surveys the (very considerable) extent to which changes in the Federal Rules of Civil Procedure over the past quarter century have expanded and legitimized the pretrial managerial powers of federal trial-court judges. It then turns to an issue sometimes touched on in prior literature--whether the move toward greater managerialism departs from the "adversarial" model of the judge as passive referee and makes us more like supposedly "inquisitorial" civil-law systems. To the extent that civil-law judges generally exercise …


Testing The Testimonial Concept And Exceptions To Confrontation: “A Little Child Shall Lead Them”, Robert P. Mosteller Jan 2007

Testing The Testimonial Concept And Exceptions To Confrontation: “A Little Child Shall Lead Them”, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the Supreme Court radically transformed the analysis of the Confrontation Clause for hearsay, but left many specific questions unanswered. Two years later in Davis v. Washington (2006), it revisited the subject and answered a few of the unresolved issues, but again left much in doubt, apparently reorienting the focus of the testimonial definition from that of the party making the statement to that of the person receiving it. One of the areas where the new doctrine has greatest potential importance is in cases involving children, particularly cases involving physical and sexual abuse. The importance derives …


Mertonianism Unbound?: Imagining Free, Decentralized Access To Most Cultural And Scientific Material, James Boyle Jan 2007

Mertonianism Unbound?: Imagining Free, Decentralized Access To Most Cultural And Scientific Material, James Boyle

Faculty Scholarship

No abstract provided.


Applying The Access Principle In Law: The Responsibilities Of The Legal Scholar, Richard A. Danner Jan 2007

Applying The Access Principle In Law: The Responsibilities Of The Legal Scholar, Richard A. Danner

Faculty Scholarship

This article applies to legal scholarship the ideas developed and argued in John Willinsky’s 2006 book: 'The Access Principle: The Case for Open Access to Research and Scholarship' regarding the responsibilities of scholars to make their works widely available through open access mechanisms via the Internet. Willinsky’s access principle states that “A commitment to the value and quality of research carries with it a responsibility to extend the circulation of such work as far as possible and ideally to all who are in interested in it and all who might profit by it.” For Willinsky, the transformation of scholarly journals …


Challenging Direct Democracy, Erwin Chemerinsky Jan 2007

Challenging Direct Democracy, Erwin Chemerinsky

Faculty Scholarship

I want to argue today that direct democracy is undesirable and unconstitutional. I want to argue to you that the Supreme Court should find that the Michigan Civil Rights Initiative is unconstitutional, and strike it down. So I want to make two points. First, I am going to argue that direct democracy is undesirable. This is a normative argument; it’s not an argument about constitutional doctrine. Second, I want to argue that direct democracy is unconstitutional, and make a series of different arguments as to why.


Property And Empire: The Law Of Imperialism In Johnson V. M’Intosh, Jedediah Purdy Jan 2007

Property And Empire: The Law Of Imperialism In Johnson V. M’Intosh, Jedediah Purdy

Faculty Scholarship

Chief Justice's Marshall's opinion in Johnson v. M'Intosh, 21 U.S. (8 Wheat.)543 (1823) has long been a puzzle, both in its doctrinal structure and in long, strange dicta which are both triumphal and elegiac. In this Essay, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, like the case itself, with the expropriation of continents and relations between dominant and subject peoples. I examine several instances where the seeming incoherence of the opinion instead shows its debt to imperial jurisprudence, which rested on a distinction between two bodies …


Property As Constitutional Myth: Utilities And Dangers, Laura S. Underkuffler Jan 2007

Property As Constitutional Myth: Utilities And Dangers, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.


Toward A Human Rights Framework For Intellectual Property, Laurence R. Helfer Jan 2007

Toward A Human Rights Framework For Intellectual Property, Laurence R. Helfer

Faculty Scholarship

This Article, prepared for a Symposium on Intellectual Property and Social Justice held at the University of California at Davis School of Law in March 2006, addresses the growing intersection of human rights law and intellectual property law. Its principal point of departure is a November 2005 General Comment on "the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author" - a relatively obscure provision of the International Covenant on Economic, Social and Cultural Rights. The Article builds upon the analysis …


Comments On The European Commission’S Proposal For A Regulation Of The European Parliament And The Council On The Law Applicable To Contractual Obligations (Rome I), Ralf Michaels, Jürgen Basedow, Wolfgang Wurmnest Jan 2007

Comments On The European Commission’S Proposal For A Regulation Of The European Parliament And The Council On The Law Applicable To Contractual Obligations (Rome I), Ralf Michaels, Jürgen Basedow, Wolfgang Wurmnest

Faculty Scholarship

No abstract provided.


A System Of Wholesale Denial Of Rights, Michael E. Tigar Jan 2007

A System Of Wholesale Denial Of Rights, Michael E. Tigar

Faculty Scholarship

No abstract provided.


Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy Meyer Jan 2007

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy Meyer

Faculty Scholarship

No abstract provided.


Appellate Courts, Michael E. Tigar Jan 2007

Appellate Courts, Michael E. Tigar

Faculty Scholarship

No abstract provided.


The Constitution Outside The Constitution, Ernest A. Young Jan 2007

The Constitution Outside The Constitution, Ernest A. Young

Faculty Scholarship

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a …


Beware The ‘Monological Imperatives’: Scholarly Writing For The Reader, Joan A. Magat Jan 2007

Beware The ‘Monological Imperatives’: Scholarly Writing For The Reader, Joan A. Magat

Faculty Scholarship

This article describes principles of effective academic writing - offered not as edicts, but as guidelines - for legal scholars in particular. The overall focus is style, but the discussion begins with observations of format. These are followed by a few stylistic principles that govern clear and effective writing. None of these principles is a revelation to the student of method or to the accomplished writer. But for the academic writer less focused on or less familiar with such principles, being aware of and practicing them can clear the fog from syntax, illuminate the writer's thesis and its development, and …


“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk Jan 2007

“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk

Faculty Scholarship

A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …


A Comparison Of Criminal Jury Decision Rules In Democratic Countries, Ethan J. Leib Jan 2007

A Comparison Of Criminal Jury Decision Rules In Democratic Countries, Ethan J. Leib

Faculty Scholarship

This paper furnishes jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million people or more (with allowance for Mexico and South Africa). I describe general rules that do not always apply to every crime in every context. In the United States, for example, we tend to use a randomly-selected jury of twelve people that sits for a single case; laws generally require unanimity to convict and unanimity to acquit. Failure to reach unanimity results in a “hung” jury, with the …


The Missing Monitor In Corporate Governance:The Directors’& Officers’ Liability Insurer, Tom Baker, Sean J. Griffith Jan 2007

The Missing Monitor In Corporate Governance:The Directors’& Officers’ Liability Insurer, Tom Baker, Sean J. Griffith

Faculty Scholarship

This article reports the results of empirical research on the monitoring role of directors’ and officers’ liability insurance (D&O insurance) companies in American corporate governance. Economic theory provides three reasons to expect D&O insurers to serve as corporate governance monitors: first, monitoring provides insurers with a way to manage moral hazard; second, monitoring provides benefits to shareholders who might not otherwise need the risk distribution that D&O insurance provides; and third, the “bonding” provided by risk distribution gives insurers a comparative advantage in monitoring. Nevertheless, we find that D&O insurers neither monitor corporate governance during the life of the insurance …


Property Outlaws, Eduardo Moises Peñalver, Sonia K. Katyal Jan 2007

Property Outlaws, Eduardo Moises Peñalver, Sonia K. Katyal

Faculty Scholarship

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a "wrongdoer" comports with the status of property rights within our characteristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared, to a large degree, by property theorists, many of whom regard property rights as a relatively fixed constellation of entitlements that collectively produce stability and efficiency through an orderly system of ownership. In this Article, Professors Peihalver and Katyal seek partially to rehabilitate the reviled character of the intentional property …


A Textual And Historical Case Against A Global Constitution, Andrew Kent Jan 2007

A Textual And Historical Case Against A Global Constitution, Andrew Kent

Faculty Scholarship

he emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …


Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca E. Bignami Jan 2007

Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca E. Bignami

Faculty Scholarship

An earlier draft of this Article was presented at a faculty workshop at the University of Illinois College of Law. (Author's Manuscript, March 2005) This analysis of how civil society can contribute to a better system of global governance draws on the political philosophy of civil society and the comparative law of democracy. Its first part describes the civil society phenomenon in three different international organizations: the World Bank, the World Trade Organization, and the European Union. Part Two puts forward the moral principle upon which my argument rests: liberal democracy. The next part sets the stage for the discussion …


Rivers To Live By: Can Western Water Law Help Communities Embrace Their Streams?, Reed D. Benson Jan 2007

Rivers To Live By: Can Western Water Law Help Communities Embrace Their Streams?, Reed D. Benson

Faculty Scholarship

In short, this article will adress: (1) the ways in which traditional western water law has hindered efforts to preserve free-flowing rivers in our communities; (2) some examples of how cities and towns are making efforts to keep their rivers flowing in order to provide recreation and other public benefits, and the ways in which water law is beginning to change to accomodate these efforts; and (3) some suggestions for water law reforms that would expand opportunities for western communities to keep water flowing in their rivers.


Mind Games: Rethinking Bapcpa's Debtor Education Provisions, Nathalie Martin, Ocean Tama Y Sweet Jan 2007

Mind Games: Rethinking Bapcpa's Debtor Education Provisions, Nathalie Martin, Ocean Tama Y Sweet

Faculty Scholarship

This Essay provides some initial ideas about how one might redesign an appropriate course for bankruptcy debtors.


Laws Against Bubbles: An Experimental-Asset-Market Approach To Analyzing Financial Regulation, Erik F. Gerding Jan 2007

Laws Against Bubbles: An Experimental-Asset-Market Approach To Analyzing Financial Regulation, Erik F. Gerding

Faculty Scholarship

This article analyzes the effectiveness of proposed and actual securities, financial, and tax laws designed to prevent, or dampen the severity of asset price bubbles, including laws designed to mitigate excessive speculation. The article employs experimental asset market research to measure the effectiveness of these anti-bubble laws in correcting mispricings. Experimental asset markets represent complex simulations of stock markets in which subjects trade securities over a computer network. These markets allow scholars to test causal links between legal policies and market effects in ways that empirical research alone cannot. With these virtual markets, researchers can identify asset price bubbles-when prices …


The Chilling Effect Of Government Surveillance Programs On The Use Of The Internet By Muslim-Americans, Dawinder S. Sidhu Jan 2007

The Chilling Effect Of Government Surveillance Programs On The Use Of The Internet By Muslim-Americans, Dawinder S. Sidhu

Faculty Scholarship

This article demonstrates that the effect of the post-9/l1 climate facing Muslim-Americans pervades even ordinary aspects of contemporary life. Part II of the article discusses the legal paradigm of when discrimination has legal implications and merits government action. Part III explores al-Qaeda's sophisticated use of the Internet and summarizes the government's post-9/l1 online surveillance efforts. Part IV discusses OUPOLL's survey results.


Taking Voting Rights Seriously: Race And The Integrity Of Democracy In America, Aliza Organick Jan 2007

Taking Voting Rights Seriously: Race And The Integrity Of Democracy In America, Aliza Organick

Faculty Scholarship

This article demonstrates that secure and reliable elections are easily achievable in the United States - if those with economic and political power so desired. Given the costs implicit in continued clouds of legitimacy over those currently governing this nation, one would therefore expect strong and decisive action to remedy once and for all race-based electioneering games and faulty voting machinery. The thesis of this article, however, is that this is very unlikely to occur; rather, those with power seem to be exercising an option to use race instrumentally to foil the democratic process and to enhance their electoral interests. …


Wands Away (Or Preaching To Infidels Who Wear Earplugs), Laura Spitz Jan 2007

Wands Away (Or Preaching To Infidels Who Wear Earplugs), Laura Spitz

Faculty Scholarship

The juxtaposition between doing--what we might call "practice"--and reading or thinking about doing--what we might call the study of "theory" or "doctrine" or both--evokes familiar debates on what a law school is and the pedagogical choices made by teachers and administrators.


Enhancing Diversity In An Appointive System Of Selecting Judges, Leo M. Romero Jan 2007

Enhancing Diversity In An Appointive System Of Selecting Judges, Leo M. Romero

Faculty Scholarship

Any system for selecting judges must be legitimate, and it will not be perceived as legitimate if it excludes certain members of the bar or if it makes it difficult for different groups to get its members on the bench. For an appointive system1 to be perceived as legitimate, it must ensure that diversity is considered in nominating candidates and in appointing judges. This Article will examine the different measures that states, with a particular focus on New Mexico, have adopted in order to enhance diversity in their appointive systems and then propose ways to structure an appointive system that …


Unpacking Pandora's Box: Innovative Techniques For Effectively Counseling Asylum Applicants Suffering From Post-Traumatic Stress Disorder, Carol M. Suzuki Jan 2007

Unpacking Pandora's Box: Innovative Techniques For Effectively Counseling Asylum Applicants Suffering From Post-Traumatic Stress Disorder, Carol M. Suzuki

Faculty Scholarship

Many asylum seekers are denied relief in the United States because the asylum officer or immigration judge evaluating the case does not believe the asylum applicant is telling the truth. The applicant may appear not to be credible because his story of persecution lacks sufficient detail and is inconsistent. A victim of severe and often prolonged trauma may develop post-traumatic stress disorder (PTSD), which profoundly affects his ability to tell a consistent and detailed story of past persecution. Thus, an asylum seeker suffering from PTSD as a result of traumatic experiences, desperately in need of a safe haven, may be …