Digital Commons Network^™

The Survival Of The Derivative Suit: An Evaluation And A Proposal For Legislative Reform, John C. Coffee Jr., Donald E. Schwartz

Faculty Scholarship

The shareholder derivative suit today faces extinction. Long considered the "chief regulator of corporate management," and a recognized form of litigation in American courts at least since 1855, it now confronts the second great challenge of its history. Thirty-odd years ago, commentators foresaw the derivative suit's demise when state legislatures began adopting security-for-expenses statutes to curb the abuses of "strike suit" litigation. These reports of its death proved exaggerated, however, as plaintiffs discovered various tactics by which to outflank these statutes. As a result, by the late 1960's, the crisis was past, and a revival in the action's popularity was …

A Structural Approach To Corporations: The Case Against Defensive Tactics In Tender Offers, Ronald J. Gilson

Faculty Scholarship

Tender offers present an obvious and inherent conflict of interest between management and shareholders. On the one hand, an offer provides shareholders with the opportunity to sell their shares for a substantial premium over market price. On the other hand, the tender offer is the principal mechanism by which management can be forcibly unseated from control. It should thus come as no surprise that management often resists outsiders' efforts to direct tender offers at its shareholders. The form of that resistance, however, is somewhat surprising. Because the tender offer is the only form of corporate acquisition addressed directly to the …

A Reply To Professor Ball, Philip Chase Bobbitt

Faculty Scholarship

Although it has been observed that approaching an allegedly universalistic theory by asserting the time- and culture-bound nature of that theory is an attack of some sort, Professor Ball does not take my lectures to be a rebuke to the enterprise in which he, Professor Tushnet, and others are engaged. Instead, he complains that I do not examine the relation between constitutional argument, on the one hand, and, on the other, social, political, and economic interests. This is a mistaken reading of my work. It is nice to be told that Tushnet and Ball accept my formulation "that in our …

Analytical And Comparative Variations On Selected Provisions Of Book One Of The Louisiana Civil Code With Special Consideration Of The Role Of Fault In The Determination Of Marital Disputes, Thomas E. Carbonneau

Faculty Scholarship

This article is intended to be a type of "structuralist" commentary upon selected provisions in Book I of the Louisiana Civil Code. Its sole purpose is to illustrate, both for pedagogical and doctrinal reasons, some of the analytical difficulties to which these code provisions might give rise when they are read in a close textual fashion. It should be emphasized that this study is a textual commentary and not a historical assessment of the sources or origins of the code texts – the latter analysis is outside the purview of the present endeavor.

Accordingly, this article consists of a critical …

Conjugal Violence: The Law Of Force And The Force Of Law , Maria Marcus

Faculty Scholarship

The Article concludes that neither the impartial mission of the rule of law nor the neatly tooled goal of individual justice has been served by the governmental response to conjugal violence, and suggests the elements from which a valid approach may be constructed.

Tort Responsibility Of Mentally Disabled Persons, James W. Ellis

Faculty Scholarship

The standard of care to be applied in tort cases involving mentally disabled people has not been reconsidered in recent years. Traditional rationales for the "objective" standard are less persuasive in the context of current legal approaches to the rights of mentally ill and retarded persons. Analogies to children (especially the concept of "mental age") and to physically handicapped adults merit reexamination. The objective standard of care for mentally disabled defendants was an outgrowth of the ideology of confinement-an ideology that society has since abandoned. Adoption of a subjective standard would not right a vast number of grave injustices, nor …

Competency To Stand Trial Under The Senate And House Proposed Revisions Of The Federal Criminal Code, Leo M. Romero

Faculty Scholarship

In 1980 the judiciary committees of the Senate and the House of Representatives reported bills revising the federal criminal code. Although neither of these bills was enacted by the Ninety-Sixth Congress, they represent the culmination of efforts, over a period of a decade, to revise and reform the federal criminal laws in a comprehensive code.

Punishment And Compensation, George P. Fletcher

Faculty Scholarship

When novelists and philosophers turn to the work of lawyers, they tend to gravitate toward certain issues and ignore others. Two processes-punishment and compensation-lie at the heart of our legal system, but only the former has drawn the attention of literary and philosophical minds.

The issues of wrongdoing, guilt, and expiation are of endless fascination not only for Dostoevsky and Dürrenmatt, but for any writer who seeks to fathom the foundations of our moral life. For philosophers, the concept of punishment has become a proving ground of the even broader conflict between deontological and utilitarian moral theories. Deontologists hold that …

Monrad G. Paulsen, Michael I. Sovern

Faculty Scholarship

Nothing made Monrad happier than bringing together two people he loved whose lives had not previously intersected and seeing a new friendship blossom. I owe some of the most satisfying relationships of my life to that wonderful taste. And I see its fruits all over this room today. Monrad would be overjoyed if he could see us all together.

Monrad Paulsen And The Idea Of A University Law School, Michael J. Graetz, Charles H. Whitebread Ii

Faculty Scholarship

Monrad Paulsen played a very special role in both of our lives. He was our friend and our first dean, and we will likely remember no future dean with the same affection, loyalty, and admiration. Monrad knew when to encourage and when to criticize, and he used his knowledge and the force of his personality to help launch both of us in the academic profession. He was, however, more to us than friend, supporter, and critic: our views about legal education were, in important and permanent ways, shaped by Monrad Paulsen.

Central to Monrad's view of legal education was his …

Communicating With Juries: Problems And Remedies, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Assuring Effective Assistance Of Counsel, William W. Schwarzer

Faculty Scholarship

No abstract provided.

The Dismantling Of Higher Education Part 1, William K.S. Wang

Faculty Scholarship

No abstract provided.

Legal Ethics: Legal Rules And Professional Aspirations, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

How Far May A Lawyer Go In Assisting A Client In Legally Wrongful Conduct?, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Revisiting The Second Restatement Of Judgments: Issue Preclusion And Related Problems, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Reliance In The Revised Restatement: The Proliferation Of Promissory Estoppel, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Balzacian Legality: A Proposal For Natural Law Juridicial Standards Of Legality, Thomas E. Carbonneau

Faculty Scholarship

The task of the present article is twofold. First, it represents an attempt to make an original English language contribution to the continuing interdisciplinary inquiry, begun in France, into the presence of law in Balzac's The Human Comedy, by focusing upon themes and novels that have not been the subject of previous individual study. Second, it seeks to contribute to an area of growing interest to legal scholars in the United States – the study of law and literature – by providing an example of the insights one French novelist with legal training and experience had into questions that …

The Elaboration Of A French Court Doctrine On International Commercial Arbitration: A Study In Liberal Civilian Judicial Creativity, Thomas E. Carbonneau

Faculty Scholarship

The task of the present article is to examine the historical evolution and current status of the French judicial doctrine on international commercial arbitration. It endeavors to compare the international doctrine with the French domestic law on arbitration and to illustrate briefly its conformity to the provisions of the international conventions on arbitration to which France is a party. Its chief design, however, is to concentrate upon the court decisions themselves, underscoring their progressive quality and pointing to their systemic implications.

French Codification Of A Legal Framework For International Commercial Arbitration, W. Laurence Craig, William W. Park, Jan Paulsson

Faculty Scholarship

Resolution of a dispute arising under an international commercial contract frequently has been plagued with uncertainty regarding applicable substantive and procedural law. These problems are not necessarily solved by the presence of an arbitration clause in the contract. In the absence of a clearly defined arbitral system, the parties can not be certain of the rules regarding the arbitral procedure or the recognition and enforcement of arbitral awards. By enacting a decree that specifically applies to international commercial arbitration, France has recently taken a major step toward resolving the uncertainties surrounding the resolution of international commercial disputes. The authors analyze …

Union Waiver Of Employee Rights Under The Nlra: Part Ii - A Fresh Approach To Board Deferral To Arbitration, Michael C. Harper

Faculty Scholarship

The author applies the non-waiverprinciple developed in Part I of this article to Board deferral to arbitration. Former Chairman Murphy's concurring opinion in General American Transportation Corp. is evaluated in light of the non- waiver princple. The author analyzes the issues not properly resolved in that opinion, while demonstrating its basic insight.

In Part 1 of this essay, I explored the implications of the Supreme Court's holding in NLRP v. Magnavox Co. that exclusive bargaining agents do not have the authority to waive certain rights protected by section 7 of the National Labor Relations Act. Drawing on Magnavox, …

The Right To Privacy In Nineteenth Century America, David J. Seipp

Faculty Scholarship

On December 15, 189o, Samuel D. Warren and Louis D. Brandeis, two young Boston law partners, published an article in the Harvard Law Review entitled The Right to Privacy. In that article, they proposed a remedy for invasions of personal privacy by the press. More than ninety years later, protection of privacy has become a major concern of the law. Legal scholars have organized the extensive body of case law into a coherent common law of privacy; the Supreme Court has enshrined the right to privacy in the "penumbra" of the Bill of Rights; and Congress has enacted additional safeguards.

In Order To Have Water: Legal, Economic And Institutional Barriers To Water Reuse In Northern New England, Michael S. Baram, J. Raymond Miyares

Faculty Scholarship

The maintenance of adequate water supplies to meet increasing demand upon residential and industrial users in New England is now an urgent concern. Encouragement of water reuse is one of the ways in which water conservation can be implemented. This Article, synthesized by the authors from their technical report, examines current legal and institutional methods of promoting water reuse and conservation. They analyze their effectiveness and argue that legal and political reform is needed to achieve the ends of water conservation. I

Wilderness And Its Discontents–Wilderness Review Comes To The Public Lands, John D. Leshy

Faculty Scholarship

No abstract provided.

Revocation Of A Revoking Codicil: The Renaissance Of Revival In California, Gail Boreman Bird

Faculty Scholarship

No abstract provided.

The Dismantling Of Higher Education Part 2, William K.S. Wang

Faculty Scholarship

No abstract provided.

Introduction (Symposium: Constitutional Issues In Land Use Regulation), Richard B. Cunningham

Faculty Scholarship

No abstract provided.

Mccormick On Evidence And The Concept Of Hearsay: A Critical Analysis Followed By Suggestions To Law Teachers, Roger C. Park

Faculty Scholarship

No abstract provided.

Trading On Material Non-Public Information On Impersonal Stock Markets: Who Is Harmed, And Who Can Sue Whom Under Sec Rule 10b-5?, William K.S. Wang

Faculty Scholarship

No abstract provided.

The Lawyer's Obligation To Be Trustworthy When Dealing With Opposing Parties, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.