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 …

Our Perfect Constitution, Henry Paul Monaghan

Faculty Scholarship

Professor Monaghan takes issue with "due substance" theorists, who view the Constitution as protecting rights and values generated by current conceptions of political morality. In this Article, he examines and criticizes the theories advanced to justify looking to those current conceptions as an acceptable mode of reasoning about constitutional meaning. Professor Monaghan's own view is that the proper mode of ascertaining constitutional meaning is one that looks to original intent and precedent, a view that acknowledges the Constitution does not guarantee perfect government.

Silence As A Moral And Constitutional Right, Kent Greenawalt

Faculty Scholarship

Like the Fourth Amendment ban on unreasonable searches and seizures, the privilege against self-incrimination stands as a barrier to the government's acquisition of information about criminal activities. The moral analogue in private relations to the Fourth Amendment right is quite straightforward. One person should not rummage about the private spaces of another seeking signs of bad behavior unless he has very powerful reasons. The Fourth Amendment similarly limits the government, generally permitting searches only upon probable cause. The private moral analogue to the Fifth Amendment's right of silence is harder to identify, its analysis is more complex and the judgments …

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 …

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …

Principles Of Relational Contracts, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

Recent scholarship has demonstrated that a significant proportion of private contracts do not easily fit the presuppositions of classical legal analysis. One reason for this is the pivotal role played in conventional legal theory by the concept of the complete contingent contract. Parties in a bargaining situation are presumed able, at minimal cost, to allocate explicitly the risks that future contingencies may cause one or the other to regret having entered into an executory agreement. Under these conditions, the role of legal regulation can be defined quite precisely. Once the underlying rules policing the bargaining process have been specified, contract …

A Paradigm Of First Amendment Dilemmas: Resolving Public School Library Censorship Disputes, Leora Harpaz

Faculty Scholarship

In recent years courts have begun to ponder the first amendment issue of public school library book censorship. These fledgling judicial efforts have produced a mostly inadequate analysis of the complex legal picture presented by school library book censorship. Courts that desire to intervene in censorship disputes almost unthinkingly have relied on first amendment doctrines developed outside of the censorship area and assumed their easy application to this new problem. Courts that take a hands-off attitude toward the area rely heavily on the appropriateness of judicial intervention as their central theme. Nowhere to be found in these judicial responses is …

Union Waiver Of Employee Rights Under The Nlra: Part I, Michael C. Harper

Faculty Scholarship

The author formulates a principle, based on the Supreme Court decision in NLRB v. Magnavox, to distinguish which employee rights protected by section 7 may not be waived by unions in collective bargaining agreements. In this article, the non-waiver principle is applied to the right to strike. In the next issue, Professor Harper will address application of the principle to Board deferral to arbitration, drawing on former Board Chairman Murphy's swing vote opinion in General American Transportation Corp.

Tax Characterization Of International Leases: The Contours Of Ownership, William W. Park

Faculty Scholarship

Pondering the human tendency to pay dearly for short-lived adornments, Shakespeare asks a question of interest to lawyers as well as poets: "Why so large cost, having so short a lease.. .? The lawyer's analysis of the issue might begin with a scenario set in an imaginary world in which the tax effects of business transactions are determined by their legal form rather than their economic substance. In such a world, each of two companies decides to build a new factory. One acquires the land outright, paying in several installments. The other enters into a shortterm lease at a very …

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

From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.

Faculty Scholarship

Within the context of mail and wire fraud prosecutions, criminal liability for breach of fiduciary duties is being imposed with increasing frequency. Professor Coffee discusses the disturbing failure of the courts to require that the fiduciary's conduct have caused legally cognizable harm to the beneficiary. He concludes that an affirmative defense should be available to fiduciaries to show the lack of proximate cause between a breach and the injury. In addition, federal enforcement should occur only after state and private remedies have proven inadequate.

Reflections On Felony-Murder, George P. Fletcher

Faculty Scholarship

Of all the reforms proposed by the Model Penal Code, perhaps none has been less influential than the Model Code's recommendation on the perennial problem of felony-murder. As found in our nineteenth-century criminal codes, the rule has several variations. The basic scheme is to hold the accused liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and non-negligently. According to …

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 …

Conflicts Of Law And Morality – Institutions Of Amelioration, Kent Greenawalt

Faculty Scholarship

In his rich, intricate, and wise examination of themes from the Crito, A. D. Woozley explores Socrates' proposal, put in the mouth of the personified laws of Athens, that the duty of a citizen is to obey a law or to persuade society that the law is wrong. If this position is understood to permit disobedience and attempted persuasion after a law is adopted, one of its implications is that on some occasions when people intentionally break the law, those who administer the law may properly decline to impose the stipulated punishment, because they believe that disobedience was justified. Suggesting …

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.

Foreign Ownership And The Theory Of Trade And Welfare, Richard A. Brecher, Jagdish N. Bhagwati

Faculty Scholarship

Some standard topics in the theory of international trade are reconsidered in this paper by distinguishing between national and aggregate income when fixed supplies of foreign inputs are present within the home country. Under conditions that would ensure a national welfare gain if' foreign ownership were absent, international transfer, economic growth, or tariff policy might cause a national welfare loss in the presence of foreign ownership. The techniques developed could be applied to other domestic distinctions (such as those based on race, sex, age, or ethnicity) and to the theory of' customs unions in a three-country world.

The Cleveland Housing Court Act: New Answer To An Old Problem, Frederic P. White

Faculty Scholarship

The operations of the Cleveland Municipal housing court commenced April 2, 1980. The Housing Court, a division of the Cleveland Municipal Court system, was established to resolve all housing-related disputes. While considered by some as a welcome solution to overcrowded court dockets, others view it as simply another unnecessary cog in an already overburdened bureaucratic wheel. Close examination indicates, however, that there is a serious question as to whether this specialized judicial division is in fact meeting its intended purpose.

This Article will critically examine the Housing Court's historical setting, constitutional foundation and jurisdictional powers. In addition, comparison with systems …

Toward A Theory Of Prior Restraint: The Central Linkage, Vincent A. Blasi

Faculty Scholarship

The doctrine of prior restraint embodies a temporal preference. Acts of expression that could be sanctioned by means of criminal punishment or a civil damage award may not be regulated "in advance." The factor of timing, however, cannot serve to distinguish methods of regulation as neatly as this statement would seem to imply. In addition to a retrospective impact relating to punishment or compensation, criminal prohibitions and civil liability rules are meant to have a prospective impact – to deter speakers from engaging in harmful acts of expression in the future. If impact on speech before the moment of its …

Regulatory Reform In A Time Of Transition, Peter L. Strauss

Faculty Scholarship

As Americans have become both disheartened at the performance of their governments and conscious of their penetration into what were once private lives, regulatory reform has been urged with increasing fervor at both federal and state levels. Some of the reform talk is lawyer's talk, some of it is directed to the most fundamental aspects of the government order, and there is a good bit in between. My purpose here is to examine a number of the directions being suggested at the federal level for regulatory reform during the coming decade. While it would be helpful also to consider state …

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, …

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 …

Legal Issues In The Third World's Economic Development, William W. Park

Faculty Scholarship

No abstract provided.

The Unfinished Business Of Section 1244: Removing The Remaining Traps, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Report On The National Commission: Good As Gold, George J. Annas

Faculty Scholarship

The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research ended its work by substantially endorsing the status quo which places primary reliance on local Institutional Review Boards for subject protection. This was predictable because of the Commission's researcher-dominated composition which permitted it to assume that (1) research is good; (2) experimentation is almost never harmful to subjects; and (3) researcher-dominated IRBs can adequately protect the Interests of human subjects. The successor Presidential Commission can learn much by reexamining these premises.

The Case For Medical Licensure, George J. Annas

Faculty Scholarship

Locke et al. argue elsewhere in this issue that medical licensure should be abolished. Their reasoning is direct and seductive - but their free market cure is worse than the disease they describe. Their major premise, for example, is simply wrong: "Any governmental action that violates individual rights is improper." For this notion they cite the ultraconservative novelist Ayn Rand who talks about things that are "right" for humans to do. But there are two confusions: (I) rights do not exist in a vacuum; in an interdependent society the rights of individuals must sometimes be balanced against the rights of …

Byu Education Week Lectures On The History Of Mormon Lawyers, James H. Bachman

Faculty Scholarship

• Introduction.

• Pt. I. Attitudes within the Mormon Church toward the study of law.

• Pt. II. The pioneer lawyer.

• Pt. III. The increasing stature and impact of Mormon lawyers

• The J. Reuben Clark era.

• Pt. IV. The J. Reuben Clark Law School and Mormon Lawyers today.

• Bibliography.

Glass-Steagall: Some Critical Reflections, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Glass-Steagall: Some Critical Reflections, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Defects And The Central Peak In Srtio3, Rolfe G. Petschek

Faculty Scholarship

It has been suggested that defects cause the central peak in SrTiO3. This paper presents a mean-field study of point defects which couple so strongly to the order parameter that nonlinear interactions in neighboring cells are important. Fair agreement with experimental results from electron paramagnetic resonance is found with a concentration of defects fitted to inelastic neutron scattering results. The hindered reorientation of domains is found to be consistent with this concentration of defects.

An Identity Crisis For The Corporate Lawyer, Roberta S. Karmel

Faculty Scholarship

No abstract provided.