Digital Commons Network^™

Distrust Of Democracy, Richard Briffault

Faculty Scholarship

The current rediscovery of state constitutions has had a singular and curious feature: it has been focused largely on state constitutional provisions that are analogous, if not identical, to provisions of the United States Constitution. Scholars and jurists have devoted their attention to state protections of speech, state equal protection clauses, state privileges against self-incrimination, and state proscriptions of cruel and unusual punishments, and have developed interpretations of these texts that diverge from those adopted by the United States Supreme Court in construing comparable federal constitutional provisions. These attempts to play state variations on federal constitutional themes have not been …

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.

The Development Of The Law Of Seditious Libel And The Control Of The Press, Philip A. Hamburger

Faculty Scholarship

This article presents a new account of the development of the law of seditious libel from the late sixteenth century to the early eighteenth. It also outlines a new version of the relationship between the government and the press during that period. The article argues that it was the gradual erosion, during the late sixteenth and seventeenth centuries, of the legal foundations of the government's policies toward the press that eventually made necessary a new policy based on the law of libel. In the midsixteenth century, the Crown possessed a wide variety of means for dealing with the printed press, …

Price Adjustment In Long-Term Contracts, Victor P. Goldberg

Faculty Scholarship

After parties enter into a contract, changed circumstance might result in one of them being dissatisfied with the price. Anticipating this, the parties could include a price adjustment mechanism in the agreement. If the mechanism is imperfect, some dissatisfaction will remain. This dissatisfaction may result in litigation with the dissatisfied party asking the court either to excuse performance or revise the contract price. For example, large changes in fuel prices since 1973 generated considerable litigation.

In this paper, I suggest a framework for analyzing price adjustment in private contracts. Contrary to most economists and lawyers, I argue that price adjustment …

The Invention And Reinvention Of Welfare Rights, William H. Simon

Faculty Scholarship

This essay contrasts the jurisprudence of welfare entitlement developed by social workers during and after the New Deal with the lawyers' welfare jurisprudence of the past two decades.

I find this contrast interesting for two reasons. First, it brings to light an episode in the intellectual history of the American welfare state that lawyers have ignored – the development of an understanding of welfare as a legal right by another profession long before Charles Reich's The New Property and the literature that followed it made such a notion current among lawyers. Second, the contrast between the social workers' and the …

Legal Informality And Redistributive Politics, William H. Simon

Faculty Scholarship

Until recently, one of the most consistent themes in both right and left critiques of the legal system has been the repudiation of procedural formality, that is, of specialized, rule-bound procedures. The left critique portrayed formality as facilitating the manipulation of the legal system by the privileged to the disadvantage of others. Both right and left critiques portrayed formality as expressing and fostering alienation and antagonism.

In recent years, however, attitudes toward formality on the left have become increasingly complex and ambivalent. This development may be partly a reaction to the rising prominence of a conservative rhetoric that links proposals …

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 …

Religious Convictions And Lawmaking, Kent Greenawalt

Faculty Scholarship

In this Article, presented as the 1985-86 Thomas M. Cooley Lectures at the University of Michigan School of Law on March 10-12, 1986, Professor Greenawalt addresses the role that religious conviction properly plays in the liberal citizen's political decisionmaking in a liberal democratic society. Rejecting the notion that all political questions can be decided on rational secular grounds, Professor Greenawalt argues that the liberal democratic citizen may rely on his religious convictions when secular morality is unable to resolve issues critical to a political decision. The examples of animal rights and environmental protection, abortion, and welfare assistance illustrate situations where …

The Natural Duty To Obey The Law, Kent Greenawalt

Faculty Scholarship

In this Article, Professor Greenawalt examines the strengths and weaknesses of arguments asserting the existence of a natural duty to obey the law. He begins by defining "natural duty," and then investigates this concept in the theories of John Finnis, John Rawls, Tony Honore, Philip Soper, and John Mackie. Drawing upon the similarities of these theories, Professor Greenawalt questions the nature, reach, and force of the natural duty to obey, considering, among other things, whether the duty extends to laws that are unjust or to laws with which few others comply, and examining more generally when duties should be understood …

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …

Paradoxes In Legal Thought, George P. Fletcher

Faculty Scholarship

Traditional legal thought has generated few anomalies, antinomies, and paradoxes. These factual and logical tensions arise only when theorists press for a complete and comprehensive body of thought. Discrete, unconnected solutions to problems and particularized precedents spare us the logical tensions that have troubled scientific inquiry.

Anomalies arise from data that do not fit the prevailing scientific theory. Paradoxes and antinomies, on the other hand, reflect problems of logical rather than factual consistency. To follow Quine's definitions, paradoxes are contradictions that result from overlooking an accepted canon of consistent thought. They are resolved by pointing to the fallacy that generates …

The Metamorphosis Of Legal Education Symposium On Legal Education, Peter L. Strauss

Faculty Scholarship

Professor Brook's remarks this morning provide a context for my own. I mean to say a word or two for the classical era. One of the characteristics of legal education over the past half century or so, one that we ought not give up, has been its passion for order in a chaotic world. Striking as it is to say that "a passion for order ill suits a chaotic world," the world has ever been chaotic – and that passion, our principal defense. The question is, with what principles of order do we exercise that passion, to subdue unruly fact. …

Writ Writing Revisited: The Auto-Cite Approach, James Hambleton, Jim Paulsen

Faculty Scholarship

The November 1984 issue of the Texas Bar Journal contains an article discussing Texas writs of error and writ history ("Does West Write the Right Writs?"). The article examines the two most commonly used sources for Texas writ history: the West Writs of Error and Discretionary Review Tables, and Shepard's Texas Citations. The conclusion was that both contain a number of significant error and omissions.

Actually, there is a third and generally more accurate source for recent Texas writ history. Marketed by Lawyers' Cooperative, the same folks who publish A.L.R. and the Lawyer's Edition of the U.S. Reports, …

Trespass, Nuisance, And The Costs Of Determining Property Rights, Thomas W. Merrill

Faculty Scholarship

The right to exclude intrusions by others, we have it on high authority, is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Yet the right to exclude is not one right; it is itself a collection or "bundle" of rights. With respect to property in land, for example, the right to exclude depends to a large extent on whether the intrusion in question is subject to the common law of trespass or of nuisance. Generally speaking, when the intrusion is governed by trespass, then there is no exception for de minimis …

Massachusetts And The Judges: Judicial Independence In Perspective, Barbara Aronstein Black

Faculty Scholarship

This is an essay about an incident that took place in the Province of Massachusetts Bay during the period 1772-1774, an incident that I will call the Affair of the Royal Salary. Close relative of the Stamp Act Crisis, The Boston Tea Party, even the Boston Massacre, the Affair of the Royal Salary similarly involved a clash between the forces of popular government and those of imperial government; like its better known cousins it is part of the story of the coming of the American Revolution in Massachusetts. In addition, since the Salary around which the Affair developed was intended …

Federal Tort Claims At The Agency Level: The Ftca Administrative Process, George A. Bermann

Faculty Scholarship

Tort actions against the federal government and its agencies are currently governed by the FTCA and various other statutes, agency rules and procedures. Claims against the government are increasing rapidly, and the agencies enjoy broad settlement authority, often at the expense of coordination among the appropriate statutes. This Article examines the various procedures allowed and those that are actually practiced by the agencies. The author points out that, though claims officers are supposed to be fair-minded, the process can take on an adversarial nature, often a prelude to litigation rather than settlement. He proposes that the current processes be made …

Reforms And Innovations Regarding Authors' And Performers' Rights In France: Commentary On The Law Of July 3, 1985, Jane C. Ginsburg

Faculty Scholarship

Following thirteen months of parliamentary deliberations, on July 3, 1985, France enacted a law which brings major reforms and additions to its copyright act of March 11, 1957. The new law becomes effective on January 1, 1986. Among the French modernizations and innovations discussed in this Article are the new law's provisions regarding: computer software protection and ownership; royalties for home taping of audio and audiovisual works; and the recognition and regulation of "neighboring rights." These provisions extend statutory protection for the contributions of performing artists, and also accord reproduction and performance rights to the producers of phono- and videograms. …

Authors' Rights In France: The Moral Right Of The Creator Of A Commissioned Work To Compel The Commissioning Party To Complete The Work, André Françon, Jane C. Ginsburg

Faculty Scholarship

The French law protecting authors' rights incorporates two distinct regimes of rights, "pecuniary" rights, and "moral" rights. As the denomination indicates, pecuniary rights pertain to the author's economic interests, and provide the author a monopoly in the reproduction and public performance of his work. Moral rights safeguard the author's "personality" interest in his work. Despite the appellation "moral" rights, the author's claims under French law to the security of his personality as expressed in his work are not precatory: moral rights entail several distinct and enforceable interests. These are: the right to make the work known to the public "droit …

Insider Trading As Victimless Crime, Gary S. Lawson

Faculty Scholarship

Insider Trading as Victimless Crime

Few corporate-governance issues arouse as much indignation in the general press as insider trading. Allowing executives to reap trading profits based on their knowledge of internal corporate developments is widely viewed as grossly unfair-though it is not always clear who is victimized by this unfairness. Sometimes the companies that the insiders work for suffer harm, but other times they welcome the trading. Outside shareholders may envy the profits of inside traders, but proving that they are harmed by the practice is much more difficult. On the whole, the most common grievance against insider trading is …

Explaining Habeas Corpus, Larry Yackle

Faculty Scholarship

The conventional rationale underlying postconviction habeas corpus in the Federal forum is that the individual's interest in freedom from unlawful detention warrants a second look at Federal claims already rejected by the State courts. The subject-matter jurisdiction of the habeas courts is explicitly limited to petitions from applicants who allege they are in 'custody' in violation of Federal Law. The courts, however, circumvent the 'custody' requirement if it threatens to obstruct effective Federal postconviction review to protect persons from recalcitrant State authorities. The proposed alternative explanation of habeas corpus is that it makes available a Federal forum in which to …

Regulating Heart And Liver Transplants In Massachusetts: An Overview Of The Report Of The Task Force On Organ Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the country. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal and thus neither are their solutions. Heart and liver transplants are extreme and expensive interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant procedures and other extreme …

A Note On The Inefficiency Of Non-Linear Estimators, Keith N. Hylton

Faculty Scholarship

An upper bound on the inefficiency of non-optimally weighted method of moments estimators is reported, along with a necessary and sufficient condition for the equivalence of non-optimally and optimally weighted estimators. An example is considered in which a precise expression for the inefficiency bound is attainable.

Limits To Attorney-Client Confidentiality: A Philosophically Informed And Comparative Approach To Medical And Legal Ethics, Nancy J. Moore

Faculty Scholarship

The proper limits to attorney-client confidentiality are hotly debated by lawyers and legal scholars. Various drafts of the proposed Model Rules of Professional Conduct have included controversial provisions which call for the disclosure of adverse evidence and client perury, as well as more liberal disclosure of completed and intended client wrongdoing than is currently permitted under the Model Code of Professional Responsibility. This Article takes a comparative approach to the problem, utilizing a body of philosophical literature which explores the principle of confidentiality in the physician-patient context This "philosophically informed" approach sets out an analytical framework in which the controversies …

Constitutional Remedies For Underinclusive Statutes: A Critical Appraisal Of Heckler V. Mathews, Bruce K. Miller

Faculty Scholarship

The power of the federal courts to remedy injuries caused by constitutional violations is a fundamental assumption of our constitutional scheme. The Supreme Court's equal protection decisions of the past generation illustrate the extent to which we take this power completely for granted. When confronted with a statute that denies a litigant's fifth or fourteenth amendment right to equal treatment, the Court has rarely limited itself to a simple declaration that the statute is unconstitutional. Such declarations, rather, have been routinely accompanied by awards of often substantial relief to the persons injured by the unconstitutional inequality. The author analyzes Heckler …

Antitrust: Fear Of Fairness, Gary S. Lawson

Faculty Scholarship

In December 1985, a comprehensive Reagan administration plan for both substantive and procedural reform of the antitrust laws was made public. Under the plan, the Justice Department's 1984 merger guidelines would be codified in the Clayton Act; restrictions on interlocking directorates would be relaxed; industries affected by imports could seek antitrust waivers as an alternative to tariffs or quotas; plaintiffs could be assessed attorneys' fees for filing frivolous antitrust suits; treble damages would be eliminated in many cases; and the full share of damages of settling defendants (instead of just the settlement amount) would be deducted from the damages available …

Property Rules, Liability Rules, And Adverse Possession, Thomas W. Merrill

Faculty Scholarship

The law of adverse possession tends to be regarded as a quiet backwater. Both judicial opinions and leading treatises treat the legal doctrine as settled. The theory underlying the doctrine, although routinely discussed in the opening weeks of first-year property courses, is only rarely aired in the law reviews any more. Indeed, the most frequently cited articles on adverse possession date from the 1930s and earlier. Perhaps most tellingly, adverse possession seems to have completely escaped the attention of the modem law and economics movement – almost a sure sign of obscurity in today's legal-academic world.

Nevertheless, two recent events …

Deepest Distribution Of Atlantic Hermatypic Corals Discovered In The Bahamas., John K. Reed

Faculty Scholarship

Hermatypic corals were collected in deep water with the JOHNSON-SEA -LINK submersibles on the western and southern margins of the Little Bahama Bank (LBB), northern Grand Bahama Bank (GBB), and San Salvador Island, Bahamas. The deepest distribution of hermatypic corals known in the Atlantic Ocean was found at San Salvador. Agaricia grahamae was collected from a firm attachment on the wall at 115m (observed to 119m), and Montastrea cavernosa from 11 3m. When compared with the other collection sites, maximum depth of coral growths was shallowest off western LBB (A. grahamae - 76m, M. cavernosa - 61m, Madracis decactis -75m) …

Semiflexible Self-Avoiding Polymers, Rolfe G. Petschek

Faculty Scholarship

A simple two dimensional model for semiflexible polymers is discussed. A rigorous lower bound is obtained for the free energy and a rigorous upper bound is obtained for the energy. These bounds evaluated for infinite systems are shown to be in serious conflict with results obtained by a Monte Carlo simulation of a finite system.

The Government's Enforcement Of Draft Registration: Prosecution Or Persecution?, Joel Gora

Faculty Scholarship

No abstract provided.

The Intellectual Development Of The American Doctrine Of Judicial Review, Pnina Lahav

Faculty Scholarship

No abstract provided.