Digital Commons Network^™

Do Norms Matter?: A Cross-Country Evaluation, John C. Coffee Jr.

Faculty Scholarship

This Article starts with the recognition that the average private benefits of control vary significantly across countries. But why? The simplest explanation ascribes this variation to differences in law between jurisdictions: for example, the law of jurisdiction X could privilege controlling shareholders by allowing them to extract benefits from their corporation in the form of above-market salaries or non-pro-rata payments in connection with self-dealing transactions. But, this explanation cannot fit all cases. To illustrate, if the substantive law is essentially similar between two jurisdictions while the private benefits of control appear to be significantly different, then some other explanation must …

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …

A Defense Of Shareholder Favoritism, Stephen J. Choi, Eric L. Talley

Faculty Scholarship

This paper considers the efficiency implications of managerial "favoritism" towards block shareholders of public corporations. While favoritism can take any number of forms (including the payment of green-mail, diversion of opportunities, selective information disclosure, and the like), each may have the effect (if not the intent) of securing a block shareholder's loyalty in order to entrench management. Accordingly, the practice of making side payments is commonly perceived to be contrary to other shareholders' interests and, more generally, inefficient. In contrast to this received wisdom, we argue that when viewed ex ante, permissible acts of patronage toward block shareholders may play …

Frictions As A Constraint On Tax Planning, David M. Schizer

Faculty Scholarship

The government often uses narrow tax reforms to target specific planning strategies. Sometimes the targeted transaction is stopped. But in other cases, taxpayers press on, tweaking the deal just enough to sidestep the reform. The difference often lies in transaction costs, financial accounting, and other 'frictions, " which are constraints on tax planning external to the tax law.

This Article contributes a methodology for determining whether frictions will block end runs, and illustrates the effect of frictions by comparing the constructive sale rule of section 1259 with the constructive ownership rule of section 1260. These reforms use the same statutory …

Joel Feinberg On Crime And Punishment: Exploring The Relationship Between The Moral Limits Of The Criminal Law And The Expressive Function Of Punishment, Bernard Harcourt

Faculty Scholarship

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest inexpressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg's essay. As Carol Steiker observes, "Joel Feinberg can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay, The …

Reflections On Environmental Justice, Michael B. Gerrard

Faculty Scholarship

Environmental justice is a very hot topic. Yesterday's New York Times on the front page of the Metropolitan section had a story stating: Mid-Sized Plants Headed to Poor Areas. The story stated, "The Pataki administration acknowledges in its own study that the electric generators that it wants to install around New York City would go into poor heavily minority communities, a finding that supports some of the arguments of the project's opponents. This is quoting an unreleased environmental justice analysis that may or may not be valid, but it certainly shows how hot a topic it is. This morning …

The Rise Of Dispersed Ownership: The Roles Of Law And The State In The Separation Of Ownership And Control, John C. Coffee Jr.

Faculty Scholarship

Recent scholarship on comparative corporate governance has produced a puzzle. While Berle and Means had assumed that all large public corporations would mature to an end-stage capital structure characterized by the separation of ownership and control, the contemporary empirical evidence is decidedly to the contrary. Instead of convergence toward a single capital structure, the twentieth century saw the polarization of corporate structure between two rival systems of corporate governance:

1. A Dispersed Ownership System, characterized by strong securities markets, rigorous disclosure standards, and high market transparency, in which the market for corporate control constitutes the ultimate disciplinary mechanism; and
2. A …

Remedying Racial Profiling, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Cleaning Up The Tracks: Superfund Meets Rails-To-Trails, Clifford J. Villa

Faculty Scholarship

For more than one hundred years, railroad cars rumbled and roared along tracks in the Coeur d'Alene River Basin, serving the mining industry in the Panhandle of northern Idaho. As in many parts of the American West, the history of railroads in northern Idaho largely reflects the history of mining in the region. The first gold was discovered in this area in 1883, the same year that the area saw its first line of the Northern Pacific Railroad. In 1885, the Bunker Hill mine was established near the present town of Kellogg. Four years later, the first rail line of …

2000 Survey Of Florida Law: Real Property, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

Principled Standard Setting Requires Consideration Of More Than Science (Aei-Brookings Joint Center For Regulatory Studies, Brief 00-02) Brief Amicus Curiae In Support Of Respondents, Browner V. American Trucking Associations, Inc., No. 99-1257, (U.S. September 11, 2000)(With 20 Law Professors, Economists, And Scientists), Jonathan B. Wiener, Cary Coglianese, Gary Marchant

Faculty Scholarship

Summary of Argument: Throughout this proceeding, EPA has identified no policy or normative criteria to justify its NAAQS standards, thus suggesting that science alone can be used to determine the appropriate air quality standard. Science plays a critical, indeed essential, role in evaluating the risks of possible air quality standards being considered for adoption by EPA. However, science by itself cannot provide the justification for selecting a particular air quality standard. Especially in setting standards for non-threshold pollutants, such as in this case, scientific evidence cannot alone indicate where the standard should be set, since any level above zero will …

Liability Without Cause? Further Ruminations On Cause-In-Fact As Applied To Handgun Liability, Aaron Twerski, A. J. Sebok

Faculty Scholarship

No abstract provided.

The Paradox Of Free Market Democracy: Rethinking Development Policy, Amy L. Chua

Faculty Scholarship

No abstract provided.

Intuition And Technology In Product Design Litigation: An Essay On Proximate Causation, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

The Parsimony Of Libertarianism, James E. Fleming

Faculty Scholarship

I want to begin by congratulating Randy Barnett on writing The Structure of Liberty,' one of the most radical and provocative works of political and legal theory that I have ever read. I consider myself to be a liberal who prizes liberty. Barnett claims to provide an account of the structure of liberty along with "[t]he liberal conception of justice" and the rule of law.2 His is a radical libertarian account centrally concerned with protecting the fundamental natural rights of property, first possession, freedom of contract, and self-defense. In Barnett's world, the fabled libertarian night-watchman state has been downsized and …

Paradox Of Family Privacy, David D. Meyer

Faculty Scholarship

No abstract provided.

The Disorders Of Unrestricted Capital Mobility, And The Limits Of The Orthodox Imagination, Timothy A. Canova

Faculty Scholarship

This book review provides a critique of Robert Solomon's' Money on the Move: The Revolution in International Finance since 1980'. According to the reviewer, Solomon has written a highly descriptive account of some of the major developments in global financial markets over the past two decades. His impressive compilation of events is couched in an objective, value-neutral narrative, thereby suggesting that the tide of orthodox policy reforms is as inevitable as the sun rising. But lurking just beneath the surface are the usual neoclassical assumptions that one might expect of a former chief international economist of the Federal Reserve Board: …

Colorism: A Darker Shade Of Pale, Taunya Lovell Banks

Faculty Scholarship

In this article, Professor Banks argues that colorism, skin tone discrimination against dark-skinned but not light-skinned blacks, constitutes a form of race-based discrimination. Skin tone discrimination coexists with more traditional forms of race discrimination that impact all blacks without regard to skin tone and phenotype, yet courts seem unwilling to recognize this point. Professor Banks uses employment discrimination cases to illustrate some courts' willingness to acknowledge subtler forms of race-based discrimination, like skin tone discrimination, for white ethnic and Latina/o plaintiffs, but not for black plaintiffs. The inability of courts to fashion coherent approaches to colorism claims involving black claimants …

Alternative Dispute Resolution And The Potential For Gender Bias, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Patent Rights And Licensing, Michael S. Baram, Ashley Stevens, Thomas Meyers, Michael J. Meurer

Faculty Scholarship

This panel will discuss intellectual property - the patent incentive, patentability issues, licensing, and litigation-related matters. It will be moderated by Dr. Ashley Stevens, the Director of the Office of Technology Transfer at Boston University. Ashley has multiple degrees, including a doctorate in physical chemistry from Oxford University. He has worked in the biotech industry for a number of years, mostly with startup companies and academic research organizations such as the Dana Farber Cancer Institute, where he was also Director of Technology Transfer. Ashley was instrumental in the startup and operations of firms such as Biotechnica International, and started his …

Evaluating Mistakes In Intellectual Property Law: Configuring The System To Account For Imperfection, Maureen A. O'Rourke

Faculty Scholarship

In this Essay, the author argues that in assessing the performance of the intellectual property laws, it is useful to conceive of intellectual property law as a system comprised of both interacting decision-makers and other sets of law. Those decisionmakers include Congress, the PTO, and courts, and the other relevant laws include antitrust and contract. The author reviews the major intellectual property statutes, illustrating ways in which different institutions may be situated to correct the errors of another and how antitrust and contract also can work to correct errors in the scope of protection. The Essay concludes by arguing that …

Shaping Competition On The Internet: Who Owns Product And Pricing Information, Maureen A. O'Rourke

Faculty Scholarship

Historically, markets have almost always fallen short of satisfying the conditions for and providing consumers with the benefits of perfect competition. Certain characteristics of electronic markets, however, enhance the possibility that e-commercel will be conducted in an environment that comes closer to attaining the perfectly competitive ideal than that of most conventional markets.

The Man On The Moon, Immortality, And Other Millennial Myths: The Prospects And Perils Of Human Genetic Engineering, George J. Annas

Faculty Scholarship

The year 2000 provides an opportunity to reflect and speculate on human life in the year 3000. We cannot know what human life will be like a thousand years from now, but we can and should think seriously about what we would like it to be. What is unique about human beings and about being human? What makes humans human? What qualities of the human species must we preserve to preserve humanity itself? What would a "better human" be like? If genetic engineering techniques work, are there human qualities we should try to temper, and ones we should try to …

Sustainable Use Of Deep-Sea Organisms Collected For Biomedical Research., John K. Reed, Shirley A. Pomponi

Faculty Scholarship

The oceans continue to provide new opportunities for the discovery of marine-derived medicines and the deep sea is relatively untapped. The Division of Biomedical Marine Research (DBMR) at Harbor Branch Oceanographic Institution (HBOI) has conducted expeditions worldwide to collect a unique set of marine microorganisms and invertebrates, such as sponges and gorgonians, using the Johnson-Sea-Link submersibles to depths of 914 m. Discodermolide, a bioactive compound derived from the deep water sponges Discodermia spp., was discovered by HBOI and licensed for development as an anticancer drug. Other HBOI compounds in preclinical trials includetopsentins with potent anti-inflammatory activity and lasonolides with antitumor …

International Law - New Actors And New Technologies: Center Stage For Ngos, John King Gamble, Charlotte Ku

Faculty Scholarship

Technology and the information age are changing the allocation of power and authority in the international system with non-state actors such as intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs) assuming decision-making roles previously reserved primarily to states. Professor David Johnston sees the information age as "creating deep and broad disruptive breaches in our society, disruptions equal to those of the agricultural or industrial revolutions." Professors Keohane and Nye believe that the information age will alter the power structure of governments. Jessica Mathews's stimulating article in Foreign Affairs argues both that the information revolution is shaking the foundations of state authority, …

Debating The Field Civil Code 105 Years Late, Andrew P. Morriss, Scott J. Burnham, James C. Nelson

Faculty Scholarship

In 1895, Montana adopted a version of the Field Civil Code--a massive law originally drafted by New York lawyer David Dudley Field in the early 1860s. The Civil Code (and its companion Political, Penal, and Procedural Codes) were adopted without debate, without legislative scrutiny, and without Montanans having an opportunity to grasp the enormity of the changes the Codes brought to the Montana legal system. In sponsoring this debate over whether to repeal the Civil Code, the Montana Law Review is finally giving Montana the opportunity to examine the merits of the Civil Code that she was denied 105 years …

Property, Privacy, And The Human Body, Radhika Rao

Faculty Scholarship

No abstract provided.

Civic Discourse Amid Cultural Transformation, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Europe's Evolving Regulatory Strategy For Gmos – The Issue Of Consistency With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis

Faculty Scholarship

This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case ("Hormones case") is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular …

Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard

Faculty Scholarship

There are 3,119,963 square miles in the continental United States. That sounds like plenty of space to put just about anything. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era – unconstrained siting – lasted until the late 1960s. Then began the second era – protecting natural areas. In the early 1990s, we embarked upon a third era – environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that …