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Legal Design And The Evolution Of Commercial Norms, Jody S. Kraus Jan 1997

Legal Design And The Evolution Of Commercial Norms, Jody S. Kraus

Faculty Scholarship

The Uniform Commercial Code determines the content of most commercial law default rules by incorporating common merchant practices. The success of this incorporation strategy depends on the likely efficiency of evolved commercial practices. In this Article, I use the best available theory of cultural evolution to analyze how and why commercial practices evolve. This analysis confirms that the incorporation strategy is far superior to a system in which lawmakers rely predominantly on individual analysis and experimentation to design commercial law. But the analysis also demonstrates that common commercial practices, and the laws incorporating them, are unlikely to be optimal, in …


Breast Cancer, The Genetic "Quickfix," And The Jewish Community: Ethical, Legal, And Social Challenges, Karen H. Rothenberg Jan 1997

Breast Cancer, The Genetic "Quickfix," And The Jewish Community: Ethical, Legal, And Social Challenges, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.


Latinos, Blacks, Others, And The New Legal Narrative, Jerome M. Culp Jan 1997

Latinos, Blacks, Others, And The New Legal Narrative, Jerome M. Culp

Faculty Scholarship

No abstract provided.


Judicial Overkill In Applying The Rule In Shelley’S Case, William A. Reppy Jr. Jan 1997

Judicial Overkill In Applying The Rule In Shelley’S Case, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.


Fiduciary Duty, Contract, And Waiver In Partnerships And Limited Liability Companies, Richard A. Booth Marbury Research Professor Of Law Jan 1997

Fiduciary Duty, Contract, And Waiver In Partnerships And Limited Liability Companies, Richard A. Booth Marbury Research Professor Of Law

Faculty Scholarship

Among the controversies swirling around the promulgations of new uniform statutes governing partnerships and LLCs is the question whether and to what extend fiduciary duties should be made mandatory or waivable. Although courts and commentators have not traditionally focused on the costs of fiduciary duties, the costs are significant in that such duties may preclude agents from engaging in other legitimate ventures. Indeed, fiduciary duty may be used by those to whom it is owed to prevent competition or extort side benefits form participants. Mandatory duties effectively require participants who may identify multiple business opportunities to overinvest their human capital …


Stockholders, Stakeholders, And Bagholders (Or How Investor Diversification Affects Fiduciary Duty), Richard A. Booth Marbury Research Professor Of Law Jan 1997

Stockholders, Stakeholders, And Bagholders (Or How Investor Diversification Affects Fiduciary Duty), Richard A. Booth Marbury Research Professor Of Law

Faculty Scholarship

The traditional wisdom is that management should serve the interests of the corporation and the stockholders who own it by maximizing stockholder wealth. But a significant number of legal scholars argue that management duty should be more broadly construed to include other constituencies ("stakeholders"), such as employees, creditors, customers, suppliers, and the community at large. The broader view of management duty means that management has more discretion and that stockholders will seldom have recourse if management fails to maximize profits. Nevertheless, many states have adopted so-called other constituency statutes permitting management to consider such other interests. The difference between the …


The Limited Liability Company And The Search For A Bright Line Between Corporations And Partnerships, Richard A. Booth Marbury Research Professor Of Law Jan 1997

The Limited Liability Company And The Search For A Bright Line Between Corporations And Partnerships, Richard A. Booth Marbury Research Professor Of Law

Faculty Scholarship

Despite the potential loss in tax revenue, the Internal Revenue Service (IRS) is making it easier and easier to avoid corporate taxes. Witness the advent of limited liability companies and the proposed "check-the-box" regulations. This article takes a look at the real distinctions between -- and policy supporting -- pass-through and entity level taxation and draws the conclusion that entity level taxation will probably become limited to publicly traded entities only.


Keynote Address: Redefining Our Roles In The Battle For Inclusion Of People Of Color In Legal Education, Phoebe A. Haddon Jan 1997

Keynote Address: Redefining Our Roles In The Battle For Inclusion Of People Of Color In Legal Education, Phoebe A. Haddon

Faculty Scholarship

No abstract provided.


Terminal Decisions: Landmark Cases In The Path Toward Ethical End-Of-Life Care, Phebe Saunders Haugen Jan 1997

Terminal Decisions: Landmark Cases In The Path Toward Ethical End-Of-Life Care, Phebe Saunders Haugen

Faculty Scholarship

This brief article discusses the history of end-of-life care from a legal perspective. The article highlights important cases in Minnesota.


Of Pandas, People, And The First Amendment: The Constitutionality Of Teaching Intelligent Design In The Public Schools, Jay D. Wexler Jan 1997

Of Pandas, People, And The First Amendment: The Constitutionality Of Teaching Intelligent Design In The Public Schools, Jay D. Wexler

Faculty Scholarship

Despite the Supreme Court's 1987 decision in Edwards v. Aguillard, striking down Arkansas' statute requiring equal time for the teaching of creationism and evolution, the debate over whether some form of creationism should be taught in public schools has recently enjoyed a resurgence. In this note, Jay Wexler applies the Supreme Court's Establishment Clause to a new variant of creationism that posits the existence of an intelligent designer as an alternative to evolution. Wexler argues that teaching intelligent design theory in the public schools violates the Establishment Clause. After explaining that the Supreme Court has always applied the Establishment Clause …


Holmes's Path, David J. Seipp Jan 1997

Holmes's Path, David J. Seipp

Faculty Scholarship

The most important event in American legal history to have taken place at Boston University School of Law was the delivery, by Oliver Wendell Holmes, Jr., of a speech entitled The Path of the Law.' He was an Associate Justice of the Massachusetts Supreme Judicial Court at the time. The occasion was the dedication of a new building for the School of Law, a building the school would occupy for sixty-seven years. Holmes delivered the speech on January 8, 1897, one hundred years ago.


Double Talk And Twisted Thought: Reflections On Incoherence, Elizabeth Fajans Jan 1997

Double Talk And Twisted Thought: Reflections On Incoherence, Elizabeth Fajans

Faculty Scholarship

No abstract provided.


Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press Jan 1997

Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press

Faculty Scholarship

This article is a reflection on the history and spread of the field of alternative dispute resolution (ADR). The author focuses on the increased institutionalization of ADR – particularly in relation to mediation within the court system, with examples drawn from Florida’s experience.


Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick Mark Gedicks Jan 1997

Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick Mark Gedicks

Faculty Scholarship

Despite their considerable ideological differences, "conservative originalists" such as Robert Bork and "progressive originalists" such as Michael Perry both divide the process of understanding into cognitive (or "objective") and normative (or "subjective") aspects. The determination of the original meaning of the Constitution is methodologically separated from the question how this predetermined meaning should be applied in a particular case. This places both conservative and progressive originalists squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" which purported to be as epistemologically reliable as the methods …


Commentary [Symposium: Politicians On Judges: Fair Criticism Or Intimidation], Susan Herman Jan 1997

Commentary [Symposium: Politicians On Judges: Fair Criticism Or Intimidation], Susan Herman

Faculty Scholarship

No abstract provided.


Learning Our Limits: The Decline Of Textualism In Statutory Cases, Lawrence Solan Jan 1997

Learning Our Limits: The Decline Of Textualism In Statutory Cases, Lawrence Solan

Faculty Scholarship

No abstract provided.


Democracy, Distrust And The Public Trust: Process-Based Constitutional Theory, The Public Trust Doctrine And The Search For A Substantive Environmental Value, William D. Araiza Jan 1997

Democracy, Distrust And The Public Trust: Process-Based Constitutional Theory, The Public Trust Doctrine And The Search For A Substantive Environmental Value, William D. Araiza

Faculty Scholarship

No abstract provided.


Continuing Classroom Conversation Beyond The Well-Placed "Whys?", Bailey Kuklin, Jeffery J. Stemple Jan 1997

Continuing Classroom Conversation Beyond The Well-Placed "Whys?", Bailey Kuklin, Jeffery J. Stemple

Faculty Scholarship

No abstract provided.


The Improbability Of Religion Clause Theory, Frederick Mark Gedicks Jan 1997

The Improbability Of Religion Clause Theory, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.


Strategies For Preserving The Bankruptcy Trustee's Avoidance Power Against States After Seminole Tribe, Edward J. Janger Jan 1997

Strategies For Preserving The Bankruptcy Trustee's Avoidance Power Against States After Seminole Tribe, Edward J. Janger

Faculty Scholarship

No abstract provided.


Law And Order In Cyberspace, Nick Allard, David A. Kass Jan 1997

Law And Order In Cyberspace, Nick Allard, David A. Kass

Faculty Scholarship

No abstract provided.


The United States Parol Evidence Rule Under The United Nations Convention On Contracts For The International Sale Of Goods, David H. Moore Jan 1997

The United States Parol Evidence Rule Under The United Nations Convention On Contracts For The International Sale Of Goods, David H. Moore

Faculty Scholarship

No abstract provided.


The Disregarded Common Parentage Of The Equal Footing And Public Trust Doctrines, James R. Rasband Jan 1997

The Disregarded Common Parentage Of The Equal Footing And Public Trust Doctrines, James R. Rasband

Faculty Scholarship

No abstract provided.


Housing Abandonment And New York City's Response, David Reiss Jan 1997

Housing Abandonment And New York City's Response, David Reiss

Faculty Scholarship

No abstract provided.


Alternative Visions Of American Constitutionalism: Popular Sovereignty And The Early American Constitutional Debate, Christian G. Fritz Jan 1997

Alternative Visions Of American Constitutionalism: Popular Sovereignty And The Early American Constitutional Debate, Christian G. Fritz

Faculty Scholarship

This Article explores the revolutionary period and the early national period of American constitutionalism, examining popular sovereignty as the foundation of American governance and political power. It intends to challenge standard perspectives on American constitutionalism, in particular the notion that the United States Constitution was the model constitution and reflected the mature, complete understanding of how to translate revolutionary theory into republican practice. The Federal Constitution was not the culmination of the "correct" understanding of popular sovereignty, but merely one version that ultimately produced a distinct constitutional tradition. An alternative vision, however, existed, survived, and gave coherence to a rather …


Recent Developments, Kevin Washburn Jan 1997

Recent Developments, Kevin Washburn

Faculty Scholarship

Summary of cases in the areas of environmental law, taxation of natural resources, and water rights cases involving Native American tribes.


Images Of Women And Capital Sentencing Among Female Offenders: Exploring The Outer Limits Of The Eighth Amendment And Articulated Theories Of Justice, Jenny E. Carroll Jan 1997

Images Of Women And Capital Sentencing Among Female Offenders: Exploring The Outer Limits Of The Eighth Amendment And Articulated Theories Of Justice, Jenny E. Carroll

Faculty Scholarship

This Note explores the effect on women of this process of demarcating boundaries of unacceptable behavior within the context of a capital punishment system. Additionally, this Note explores the Eighth Amendment implications of these boundaries within capital jurisprudence. Part I examines the two most prominent theories put forth by feminist scholars to explain sentencing patterns among female capital offenders-the "chivalry theory" and the "evil woman" theory. These theories attempt to account for both the limited use of the death penalty for women and the presence of certain women on death row. In Part II, this Note considers the limited empirical …


Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg Jan 1997

Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg

Faculty Scholarship

Historically, law and government regulation have established default rules for information policy, including constitutional rules on freedom of expression and statutory rights of ownership of information. This Article will show that for network environments and the Information Society, however, law and government regulation are not the only source of rule-making. Technological capabilities and system design choices impose rules on participants. The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations. Even user preferences and technical choices create overarching, local default rules. This Article argues, in essence, that the set of …


Sexuality, Rape, And Mental Retardation, Deborah W. Denno Jan 1997

Sexuality, Rape, And Mental Retardation, Deborah W. Denno

Faculty Scholarship

In this article, Professor Denno addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The article first explores the early treatment of mental retardation. It next demonstrates how old stereotypes influence the moralism inherent in modern conceptions of consent in rape determinations. Illustrating the point with reference to the Glen Ridge rape case, the article shows how courts applying contemporary rape statutes typically hold mentally retarded individuals to a higher standard of consent than nonretarded individuals. As a result, courts are hurting the very people they are supposed to protect …


Achieving Full Effectiveness Of Community Law: The Court Of Justice's Third Stage Of Enforcement Rules Implementation, Compliance And Effectiveness: Emerging Issues On Compliance And Effectiveness Within The European Union, Roger J. Goebel Jan 1997

Achieving Full Effectiveness Of Community Law: The Court Of Justice's Third Stage Of Enforcement Rules Implementation, Compliance And Effectiveness: Emerging Issues On Compliance And Effectiveness Within The European Union, Roger J. Goebel

Faculty Scholarship

Today we will be considering the experience of the European Union (EU) as a possible model for international law. We will start with Roger J. Goebel, director since 1984 ofthe Center of European Union Law, Fordham Law School.