Digital Commons Network^™

Joseph Story's Commentaries On The Constitution: A Belated Review, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

A Transaction Theory Of Crime?, George P. Fletcher

Faculty Scholarship

The most difficult questions are foundational. It is no surprise then that one of the most puzzling questions in criminal law frames the whole inquiry: what is the nature of crime? Positivists dispose of the question easily. If the law is whatever the legislature and courts say it is, then crime is whatever these authoritative agencies designate as crime. The question becomes more interesting, however, if we regard crime as a prepositive concept, a concept that exists logically prior to the positive law. It is not that conduct is criminal because the legislature speaks; rather the legislature speaks because conduct …

The Unfaithful Champion: The Plaintiff As Monitor In Shareholder Litigation, John C. Coffee Jr.

Faculty Scholarship

When the legal history of the 1970's is written, it will note a significant shift in the way courts perceived shareholder litigation. Only a generation ago, the Supreme Court described the derivative action as "the chief regulator of corporate management." Even into the 1960's, those issues involving shareholder litigation that percolated up to the Supreme Court were typically resolved so as to extend the availability of a litigation remedy by removing arbitrary or overbroad barriers to the plaintiff.

Sharing Among The Human Capitalists: An Economic Inquiry Into The Corporate Law Firm And How Partners Split Profits, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Large corporate law firms seem to be in a state of extraordinary flux. Success and failure are both on the rise. Large firms appear to supply a substantial and growing proportion of the legal services consumed by American business enterprises and to hire a significant fraction of the graduating classes of elite American law schools. Moreover, the last twenty years have witnessed a remarkable expansion in both the number of large firms and the absolute size of the biggest. But accompanying this striking success, there are also signs of serious institutional instability. During the last few years, several previously successful …

Charting The Future Course For Corporate Management Of Health Risks, Michael S. Baram

Faculty Scholarship

Corporations engage in technological activities of benefit to society, but thereby also create new health risks for workers, consumers, and communities. Government regulatory agencies deal with this chronic problem by conducting risk analyses and imposing various duties on private firms. Despite agency efforts and corporate compliance, health risks continue to arise and take their toll. To what extent will private firms voluntarily assume greater responsibility for preventing these health risks? This question is of increasing social importance, because the limitations of regulatory efforts are now obvious, whereas health risks are now being identified at what appears to be an increasing …

Constitutional Limits On Nationwide Personal Jurisdiction In The Federal Courts, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Solvency And Survival After The Boom—A Different Perspective, A. Kenneth Pye, John R. Kramer

Faculty Scholarship

No abstract provided.

The Scope Of Bargaining In Minnesota Public Sector Labor Relations: A Proposal For Change, Deborah A. Schmedemann

Faculty Scholarship

This article surveys and analyzes the law on the scope of bargaining under the Minnesota Public Employment Labor Relations Act (PERLA) and suggests ways to make it more certain and responsive to public policy. Part II sets out the conflicting policy considerations to be accommodated in defining the scope of bargaining. These considerations form the basis for Part Ill's criticism of the present law under PELRA and guide the recommendations for change made in Part IV.

Preliminary Injunctions: The Varying Standards, Arthur D. Wolf

Faculty Scholarship

The Author undertakes a survey in this Article which shows that the Supreme Court and the courts of appeals have not articulated or applied consistent criteria for preliminary injunctive relief. Their decisions have described a sinuous path through primary standards, alternative tests, and sliding scale variations. Part of the difficulty may be because the Supreme Court has not taken a firm hand in resolving conflicts between and among the circuits on critical issues involving interlocutory injunctions. In addition while the courts of appeals make reference to each others' opinions, they have not demonstrated a desire to achieve uniformity in their …

An Analysis Of Durrett And Its Impact On Real And Personal Property Foreclosures: Some Proposed Modifications, William H. Henning

Faculty Scholarship

Section 548(a)(2) of the Bankruptcy Code empowers a bankruptcy trustee to avoid fraudulent transfers of the debtor's assets if the debtor was insolvent at the time of the transfer. Since 1980, a number of federal courts have allowed trustees in bankruptcy to avoid properly conducted foreclosure sales of a debtor's pledged collateral when the collateral was sold for less than seventy percent of its fair market value. These courts have based their decisions on the theory that the transfers involved in these sales are fraudulent conveyances. This theory has been the subject of vigorous opposition from mortgage holders and other …

Some Unwise Reflections About Discretion, George P. Fletcher

Faculty Scholarship

In listening to discussions about discretion in the criminal process, one has the sense of sharply cut distinctions slipping toward a black hole in our language. All decisions by police, prosecutors, judges and jury are routinely called discretionary. This usage pervades respectable, basically sound papers. In a recent article in the Yale Law Journal, Goldstein and Marcus seek to demonstrate that discretion pervades the decisions of French, German and Italian prosecutors. They write: "Claims that prosecutorial discretion has been eliminated, or is supervised closely, are exaggerated. Discretion is exercised in each of the systems [French, German and Italian] for …

Antitrust Standing, Antitrust Injury, And The Per Se Standard, Daniel C. Richman

Faculty Scholarship

In 1970, a district court observed: "We must confess at the outset that we find antitrust standing cases more than a little confusing and certainly beyond our powers of reconciliation." The court could hardly have been faulted, for the confusion it noted has been endemic to these cases since the creation of the treble-damages action. Courts have never read section 4 of the Clayton Act literally to allow treble damages to every plaintiff able to attribute an economic loss to an antitrust violation. This unwillingness to recognize every such injury is fully consistent with the essential principle of antitrust law …

Visions Of Practice In Legal Thought, William H. Simon

Faculty Scholarship

This essay contrasts the vision of law practice expressed in the established professional culture with a vision derived from recent Critical legal writing.

Albert J. Rosenthal In Grateful Appreciation, Michael I. Sovern

Faculty Scholarship

What a joy it is to work with Al Rosenthal! And how fortunate we are that our remarkable colleague will continue to grace the faculty to which he is devoted.

It is customary upon assuming a deanship to say nice things about your predecessor, and Al Rosenthal was no exception five years ago. But I mean far more than to return a compliment when I note how splendidly my successor as Dean, with a gently guiding hand, has enhanced the intellectual life of our law school, strengthening both faculty and student body and augmenting the support for their work. He …

Indirect Aid To The Arts, Michael O'Hare, Alan L. Feld

Faculty Scholarship

Most government support of arts institutions is indirect—the result of charitable deduction provisions of the federal income tax, property tax exemptions extended by local governments, and other tax provisions. The money that government forgoes through these provisions must be made up by higher taxes for all taxpayers. The public, however, has little say about how these funds are spent. By its very nature, the income tax deduction places the decision-making power over arts institutions in the hands of those with high incomes. Those with high incomes receive a greater tax benefit for each dollar they contribute, increasing the amounts they …

The Federal Election Campaign Act And The 1980 Election, Richard Briffault

Faculty Scholarship

During the 1970's Congress and the Supreme Court paid the most sustained attention in American history to the financing of federal election campaigns. Congress passed a succession of measures, known collectively as the Federal Election Campaign Act ("FECA" or the "Act"), closely regulating the activities of candidates, parties, private organizations, and individuals in raising and spending campaign money.

Prior to FECA, election finance was largely an extension of the private marketplace. Campaigns were funded through private, voluntary contributions to parties and candidates, with donors contributing to the extent of their interest and wealth, and private economic inequalities were replicated in …

The Perplexing Borders Of Justification And Excuse, Kent Greenawalt

Faculty Scholarship

This Article's central theme is that Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way. I explore three possible bases for drawing the distinction: (1) a distinction between warranted and wrongful conduct; (2) a division between general and individual claims; and (3) a distinction based on the rights of others. I show why none of these bases yields a clear and simple criterion for categorization. The difficulty rests largely on the conceptual fuzziness of the terms ''justification" and "excuse" in ordinary usage and on the uneasy quality of many of the moral …

Regulating The Market For Corporate Control: A Critical Assessment Of The Tender Offer's Role In Corporate Governance, John C. Coffee Jr.

Faculty Scholarship

Better answers often await better questions. In the wake of a recent series of provocative articles dealing with contested tender offers, several questions have been vigorously debated:

(1) Should management of the target company be allowed to resist a hostile tender offer in order to remain an independent company? Which, if any, of the various "shark repellent" measures by which a potential target can make itself unattractive to a bidder are justified?;

(2) If defensive tactics were generally forbidden, should the target company's management still be permitted to encourage competing bids thereby creating an auction?; and

(3) Do hostile takeovers …

Value Creation By Business Lawyers: Legal Skills And Asset Pricing, Ronald J. Gilson

Faculty Scholarship

What do business lawyers really do? Embarrassingly enough, at a time when lawyers are criticized with increasing frequency as nonproductive actors in the economy, there seems to be no coherent answer. That is not, of course, to say that answers have not been offered; there are a number of familiar responses that we have all heard or, what is worse, that we have all offered at one time or another without really thinking very hard about them. The problem is that, for surprisingly similar reasons, none of them is very helpful.

Litigation And Corporate Governance: An Essay On Steering Between Scylla And Charybdis, John C. Coffee Jr.

Faculty Scholarship

Criticism of the ALI's Corporate Governance Project has had two very different strains. Most vocal have been those critics who exhibit what one sympathetic observer has aptly termed "a neurotic fear of articulation." Although their expressed concern – namely, that courts will be encouraged to second guess boards and impose liability for arm's length business decisions that turned sour – would be a legitimate cause for anxiety if this indeed were the intent or likely effect of the Project, the underlying fear of these critics is more basic and instinctive. It is best revealed in the title of one critique …

Interest Elements In Tax Planning, Daniel S. Goldberg

Faculty Scholarship

This article discusses how interest has been and is being used in tax planning. The tax planning techniques using interest include charging too little interest or none at all, recalssifying interest as principal and allocating interest among time periods to optimize the tax consequences to the parties. The issues raised by these tax planning techniques go to the heart of the tax system. They suggest inadequacies in the development of the case law and in conventional tax thinking. The unifying principal is the divergence between the possible tax consequences and the clear economic consequences of each of the transactions. The …

From Risk-Utility To Consumer Expectations: Enhancing The Role Of Judicial Screening In Product Liability Litigation, Aaron Twerski

Faculty Scholarship

No abstract provided.

Institutional Review Of Medical Research: Cost-Benefit Analysis, Risk-Benefit Analysis, And The Possible Effects Of Research On Public Policy, Robert L. Schwartz

Faculty Scholarship

It is reasonable to expect IRBs to develop and apply policy as other public policy agencies do. In fact, the risk-benefit analysis now required of IRBs appears to be analogous to the cost-benefit analysis adopted by public policy analysts. But, as we shall see, the new risk-benefit criterion is far less comprehensive and valid than the traditional cost-benefit model.

Eliminating The "Defect" In Design Strict Products Liability Theory, John L. Diamond

Faculty Scholarship

No abstract provided.

Myth And Reality In Protective Order Litigation, Richard L. Marcus

Faculty Scholarship

No abstract provided.

The Watchdog Of Neutrality, George P. Fletcher

Faculty Scholarship

No one knows who counts as a democrat, as a fascist, or as a liberal. It is much easier to know whether it is good or bad to earn one of these political labels. Virtually everyone – including repressive regimes in eastern Europe – regards it as good to be democratic. These days, however, it is hard to encounter a sympathetic wink for fascism. Liberalism is more controversial. A growing number of our colleagues in law schools now regard it as intellectually bankrupt, if not worse, to think of oneself as a liberal. Respectable philosophers chronicle the poverty of liberalism, …

Rescuing The Private Attorney General: Why The Model Of The Lawyer As Bounty Hunter Is Not Working, John C. Coffee Jr.

Faculty Scholarship

Forty years ago, Judge Jerome Frank coined the term "private Attorney General" to recognize the role of private litigation in the enforcement of law. In the intervening years, the "private attorney general" concept has become both a cliche and a crutch, receiving polite lip service from nearly all, but critical analysis from relatively few. As most college sophomores know, the private attorney general is someone who sues "to vindicate the public interest" by representing collectively those who individually could not afford the costs of litigation; and, as every law student knows, our society places extensive reliance upon such private attorneys …

Legality, Bureaucracy, And Class In The Welfare System, William H. Simon

Faculty Scholarship

When lawyers confronted the welfare system in the 1960's, they charged it with oppressive moralism, personal manipulation, and invasion of privacy. They focused attention on the "man-in-the-house" rules that disqualified families on the basis of the mother's sexual conduct and the "midnight raids" in which welfare workers forced their way into recipients' homes searching for evidence of cohabitation.

When I represented welfare recipients from 1979 to 1981, the workers showed little interest in policing their morals or intruding on their private lives. The "man-in-the-house" rule and the practice of unannounced or nighttime visits had been repudiated. Yet the pathologies emphasized …

Was There A Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, Peter L. Strauss

Faculty Scholarship

Examining the Supreme Court's recent decisions in the legislative veto case, Professor Strauss stresses the importance of a distinction no Justice observed between use of the veto in matters affecting direct, continuing, political, executive-congressional relations, and use of the veto in a regulatory context. Only the latter, he argues, had to be reached by the Court; and only the latter presents the constitutional difficulties that troubled the Court. The utility of the veto in the political context makes the opinions' sweep regrettable.

In Vitro Fertilization And Embryo Transfer: Medicolegal Aspects Of A New Technique To Create A Family, George J. Annas, Sherman Elias

Faculty Scholarship

IVF and ET conjure up a variety of images, from "test tube babies" to Steven Spielberg's extraterrestrial. Indeed, it is sometimes difficult to separate science fiction from scientific reality. Nonetheless, the extracorporeal fertilization of a human egg followed by transfer to a human uterus and birth of a child, has been repeated in a number of countries around the world. In vitro fertilization (IVF) and embryo transfer (ET) are now reality.' Most of us applauded this new technology along with the parents of the resulting children. These infertile couples were able, with the help of IVF, to have their own …