Law Commons^™

The Protective Power Of The Presidency, Henry Paul Monaghan

Faculty Scholarship

Walter Bagehot's still-admired study of the English Constitution distinguished between its "dignified" and "efficient" parts. Bagehot argued that the English Constitution's "dignified" theory of parliamentary supremacy masked the (then) dominant reality of cabinet government. Attacking what he described as the "literary" theory of the American Constitution, Woodrow Wilson posited a similar distinction. Writing in 1885, Wilson asserted that the "literary" theory of American government embodied in Federalist's "ideal checks and balances of the federal system" obscured its efficient principle: "government by the chairmen of the Standing Committees of Congress." An ardent admirer of ministerial government, Wilson especially lamented the condition …

Tax Policy At The Beginning Of The Clinton Administration, Michael J. Graetz

Faculty Scholarship

Ten years ago, in 1983, the Yale Journal on Regulation was started by students at the Yale Law School to foster scholarship and debate on issues of regulatory policy. Today the Journal staff consists of students from Yale University graduate and professional programs in law, management, forestry, and public health. One of the Journal's primary missions was to track the regulatory/deregulatory developments under the Reagan Administration and later the Bush Administration. Since our tenth anniversary coincided with the installment of a Democratic Administration under President Clinton, we have asked two professors at the Yale Law School to submit an essay …

Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill

Faculty Scholarship

To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the …

The Dynamics Of Secrecy In The Environmental Impact Statement Process, Michael B. Gerrard

Faculty Scholarship

The environmental impact review laws – the National Environmental Policy Act (NEPA) and its state counterparts – are premised on the idea of full and open disclosure. The notion underlying these laws is that if the government and the public are fully informed of the impacts of and alternatives to proposed actions, they will make wise decisions about whether and how to proceed. The Freedom of Information Act and its state counterparts even more explicitly seek to open up governmental deliberations to the public. Considered together, these two types of laws would lead one to believe that secrecy has little …

For Mert Bernstein, Inventor Of A Field, Lance Liebman

Faculty Scholarship

Life brings odd cycles and conjunctions.

More than twenty years ago, as a brand new law teacher, I was assigned by Dean Derek Bok to teach "urban law." I said, "Derek, what is that?" He said: "You have been Assistant to Mayor Lindsay of New York for two years. You figure it out."

Why There Should Be An Independent Decennial Commission On The Press, Lee C. Bollinger

Faculty Scholarship

In 1947, the Commission on Freedom of the Press chaired by Robert M. Hutchins, published its report entitled "A Free and Responsible Press:" Sharply criticized by the media when published, the Hutchins Commission Report (as it has come to be known) seems to have assumed only minor status within the history of freedom of the press in this century, as well as among reports on social problems generally. In this article, I will consider whether the Hutchins Commission Report deserves a different fate. Given the media's usually astounding self-preoccupation, the fact that the Report was about the "press" would lead …

Finessing The Siting Conundrum, Michael B. Gerrard

Faculty Scholarship

There is a place that today's industrial society desperately wishes to find. In prior eras, people sought Nirvana or the Fountain of Youth or Shangri-La – states of mind (or nothingness) as much as places, really. The object of today's quest has no neighbors, no endangered or threatened species, no hydraulic link to precious groundwater; ideally, it has no connection to the biosphere at all.

That place is called "away," as in, "Let's dig up this contamination and haul it away," or, "We need to take this waste away." The public and private sectors in the United States have spent …

Editing, Carol Sanger

Faculty Scholarship

In May 1993, I published a book review of Richard Posner's Sex and Reason. The review was modest in length and in purpose, part of an informal division of labor undertaken by the many critics of Sex and Reason. It challenged Judge Posner's claim that an economic analysis of sex was something new and argued that women have been making rational choices with regard to sex and reproduction for quite a long time, something that Judge Posner's book seemed to miss and misunderstand throughout.

Readers of the review (the members of my MCI Friends and Family Plan) have …

Feminism And Disciplinarity: The Curl Of The Petals, Carol Sanger

Faculty Scholarship

In this Symposium, feminism has been invited to take a place alongside such well-established disciplines as history, philosophy, and economics in a consolidated exploration of interdisciplinary approaches to law. While sincerely extended – the feminist entry is not the only one that women are writing – and generously unbounded as to scope, ... the invitation raises what for many is a prior question: Is feminism a discipline at all?

As the feminist delegate to this interdisciplinary Symposium, I have therefore taken as my initial task consideration of the issue implicit in the invitation: feminism's credentials as a discipline. I explore …

Natural Rights, Natural Law, And American Constitutions, Philip A. Hamburger

Faculty Scholarship

Natural rights and natural -law are ideas that frequently seem to have something in common with the elusive shapes of a Rorschach test. They are suggestive of well-defined, recognizable images, yet they are so indeterminate that they permit us to see in them what we are inclined to see. Like Rorschach's phantasm-inducing ink blots, natural rights and natural law are not only suggestive but also indeterminate – ideas to which each of us can plausibly attribute whatever qualities we happen to associate with them. For this reason, we may reasonably fear that natural rights and natural law are ideas often …

Further Reflections On Libertarian Criminal Defense, William H. Simon

Faculty Scholarship

Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore especially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal defense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering.

Investment Companies As Guardian Shareholders: The Place Of The Msic In The Corporate Governance Debate, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Comparative corporate governance is both necessary and hard. Recent scholarship has identified the political and historical contingency of the American pattern of corporate governance. The Berle-Means corporation, with its separation of management and risk bearing and the attendant agency conflict between managers and shareholders, is now widely recognized as being as much a creature of the American pattern of law and politics as the handiwork of neutral market forces. This recognition underscores the need to place the American experience in a comparative perspective. Other patterns of corporate governance can provide both insights into the operation of our own and a …

Understanding The Japanese Keiretsu: Overlaps Between Corporate Governance And Industrial Organization, Ronald J. Gilson, Mark J. Roe

Faculty Scholarship

We aim here for a better understanding of the Japanese keiretsu. Our essential claim is that to understand the Japanese system – banks with extensive investment in industry and industry with extensive cross-ownership – we must understand the problems of industrial organization, not just the problems of corporate governance. The Japanese system, we assert, functions not only to harmonize the relationships among the corporation, its shareholders, and its senior managers, but also to facilitate productive efficiency.

Pluralism, The Prisoner's Dilemma, And The Behavior Of The Independent Judiciary, Thomas W. Merrill

Faculty Scholarship

Discussions of Thayer's conception of judicial review, as this symposium amply demonstrates, tend to be normative. Professor Nick Zeppos's paper, which offers more of a positive analysis, is therefore a welcome addition. Zeppos's paper includes three especially valuable insights. First, he demonstrates the close parallel between Thayer's theory of judicial review and the Supreme Court's Chevron doctrine. The former would have the judiciary enforce clear constitutional commands but otherwise defer to legislative understandings of constitutional meaning; the latter would have courts enforce clear legislative commands but otherwise defer to administrative interpretations of statutes. Second, he offers evidence that in both …

New Myths And Old Realities: The American Law Institute Faces The Derivative Action, John C. Coffee Jr.

Faculty Scholarship

Nothing in The American Law Institute's (ALI) Principles of Corporate Governance: Analysis and Recommendations (Principles) proved more controversial than the effort to develop fair and balanced standards for the derivative action. Only the topic of corporate takeovers seems to evoke an equally intense level of emotion among corporate lawyers. Not surprisingly then, Part VII (Remedies) of the Principles attracted the same attention from critics that a lightning rod does in a thunderstorm.

Unlike other ALI Restatements, however, the Principles also encountered a professional opposition, which lobbied against its adoption, both inside and outside the ALI, on behalf of various outside …

A Commentary On The Harmonization Of European Private Law, George A. Bermann

Faculty Scholarship

The idea behind bringing together these papers on harmonization in three such distinct fields as contract, copyright and telecommunications, and securities law must be that they may have something to tell us generally about the processes of harmonization in European private law. Each paper tells a story fascinating in its own right, but whether they in fact add up to something more, with implications for private law harmonization as a whole, is the question I naturally want to take up in this commentary.

Sectoral Strategies And Participant Commitments: The Keys To Effective Trade And Industrial Policies, Robert E. Scott

Faculty Scholarship

The declining competitiveness of the U.S. manufacturing sector of the most important causes of the decline in real wages and the stagnation in the level of the median family incomes which have plagued the United States since about 1973. Although the reports of the decline in American living standards were greeted with some skepticism when they first appeared in the work of the Economic Policy Institute ("EPI") in 1985, they have now achieved a high level of prominence on the national policy agenda. More recent studies by EPI and other research groups urge two cures for the decline. First, employment …

A Morality Fit For Humans, Joseph Raz

Faculty Scholarship

I believe that it was opposition to utilitarianism which first bred arguments claiming in one way or another that a view of morality according to which morality is very demanding is mistaken just be-cause morality cannot be so demanding. On first hearing, this type of argument is liable to seem suspect. Humans should be fit for morality, and unfortunately too often they are not – one is inclined to say. If we find morality too demanding the fault is with us and not with morality. The idea of human morality, in the sense of a morality fit for humans …

The Item Veto In State Courts, Richard Briffault

Faculty Scholarship

Contemporary debates about state constitutional law have concentrated on the role of state constitutions in the protection of individual rights and have paid less attention to the state constitutional law of government structure.This is ironic since the emergence of a state jurisprudence of individual rights has been hampered by the similarity of the texts of the state and federal constitutional provisions concerning individual rights, whereas many state constitutional provisions dealing with government structure have no federal analogues, and thus state jurisprudence in this area is free to develop outside the dominating shadow of the Federal Constitution and the federal courts. …

The Political Economy Of The Wagner Act: Power, Symbol, And Workplace Cooperation, Mark Barenberg

Faculty Scholarship

To shed light on the legal debate over new forms of workplace collaboration, this Article reexamines the origins of the National Labor Relations Act of 1935. Professor Barenberg concludes that the Wagner Act scheme was profoundly cooperationist, not adversarial as is conventionally assumed. Revisionist historiography shows that, contrary to the claims of public choice theorists, Senator Wagner's network of political entrepreneurs was the decisive force in the conception and enactment of the new labor policy, amidst interest group paralysis and popular unrest. Drawing on original archival materials and oral histories, Professor Barenberg reconstructs the progressive ideology of Wagner and his …

Lawyers At The Prison Gates: Organizational Structure And Corrections Advocacy, Susan Sturm

Faculty Scholarship

The rise of the public interest law movement ushered in an era of intense debate over the best way to provide legal representation to those unable to afford private counsel. This debate has involved two related dimensions of public interest representation. First, advocates and observers of public interest practice disagree over the proper role of lawyers acting on behalf of poor and underrepresented clients. They offer competing visions of representation spanning a continuum, from providing equal access to the courts for as many poor people as possible, to attacking the causes and effects of poverty and powerlessness.

The second dimension …

Corrective Justice For Moderns, George P. Fletcher

Faculty Scholarship

Once when I was reading a Soviet commentary on criminal procedure, a friend noticed the cyrillic title and asked whether the Russian book was fiction or nonfiction. My initial tendency was to give the straight response, "Nonfiction, of course," but then I thought about what I was reading and began to laugh. Now if someone asked me whether Jules Coleman's Risks and Wrongs was fiction or nonfiction, I would want to give the straight reply. Thinking about the book, however, I hesitate. And I do not laugh.

It is becoming more and more difficult these days to distinguish fiction from …

Equality And Diversity: The Eighteenth-Century Debate About Equal Protection And Equal Civil Rights, Philip A. Hamburger

Faculty Scholarship

Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution. Long before the Fourteenth Amendment, however – long before even the 1830s …

The Political Economy Of Female Violent Street Crime, Deborah Baskin, Ira Sommers, Jeffrey A. Fagan

Faculty Scholarship

Ten years after the U.S. Attorney General's Task Force on Violent Crime considered problems of violence in the United States, and on the heels of a National Academy Sciences report on violence, the nation seems poised to begin a new "war on violence." Past "wars" on crime problems, including the recently stalemated "war on drugs" have focused primarily on males. This one promises to be no different. Violence continues to be viewed as the province of young males in urban areas. According to the Uniform Crime Reports, over 75% of homicide victims in 1990 were males, and over 85% of …

Private Insurance, Social Insurance, And Tort Reform: Toward A New Vision Of Compensation For Illness And Injury, Kenneth S. Abraham, Lance Liebman

Faculty Scholarship

The United States does not have a system for compensating the victims of illness and injury; it has a set of different institutions that provide compensation. We rely on both tort law and giant programs of public and private insurance to compensate the victims of illness and injury. These institutions perform related functions, but the relationships among them are far from coherent. Indeed, the institutions sometimes work at cross-purposes, compensating some victims excessively and others not at all.

The absence of a coherent system of compensation is reflected even in suggested reforms of existing institutions. Proposals to reform tort law …

A Vigil For Thurgood Marshall, Eben Moglen

Faculty Scholarship

Three days after his death, on January 27th, Thurgood Marshall came to the Supreme Court, up the marble steps, for the last time. Congress had ordered Abraham Lincoln's catafalque brought to the Court, and on it the casket of Thurgood Marshall lay in state. His beloved Chief, Earl Warren, had been so honored in the Great Hall of the Court, and no one else. Congress made the right decision about the bier, and it spoke with the voice of the people: no other American, of any age, so deserved to lie where Lincoln slept.

To him, all day on Wednesday, …

The Eclipse Of Reason: A Rhetorical Reading Of Bowers V. Hardwick, Kendall Thomas

Faculty Scholarship

In a careful and compelling reading of the text of the Supreme Court's opinion in Bowers v. Hardwick, Janet Halley provides a meticulous map of the misprisions by which the Hardwick Court "exploit[s] confusion about what sodomy is in ways that create opportunities for the [judicial] exercise of homophobic power." According to Professor Halley, the duplicitous mechanisms the Hardwick Court marshals in reasoning about sodomy entail a mobilization of two "incommensurable articulations": the idea of the sodomitical act, on the one hand, and that of personal identity, on the other.

Professor Halley rightly insists that an anti-homophobic critique …

Subsidiarity And The European Community, George Bermann

Faculty Scholarship

The notion of subsidiarity in European federalism labors from all manner of burdens. It seems elusive by nature, commentators claiming that they do not know what subsidiarity means or, if they do, that they do not see in it anything new. At the same time subsidiarity has been presented at least in some quarters as a panacea for the Community's current malaise. It clearly is not that. Even if subsidiarity has not been oversold, it is almost certainly overexposed, a condition that the present Article is unlikely to cure.

My purpose in this Article is simply to help make some …

Copyright Without Walls?: Speculations On Literary Property In The Library Of The Future, Jane C. Ginsburg

Faculty Scholarship

This essay considers the application and adaptation of copyright law to the library of the future. In this "library without walls," works will be accessible by computer to users near and far. While a printed book usually is read by only one person at a time, that same book in digital format may be simultaneously consulted by as many users as have PCs linked by modem to the library. Where collecting quotations from printed sources today requires transcription or photocopying, in the library of the future it may be possible to download and print out excerpts, or even the entire …

What Difference Does It Make Whether Corporate Managers Have Public Responsibilities?, William H. Simon

Faculty Scholarship

Alan Wolfe's thoughtful paper resonates with what I think we should call the Washington and Lee School of corporate jurisprudence.' It elaborates on that School's brilliant intellectual history of legal theorizing about the corporation and on its powerful critique of conservative arguments against managerial responsiveness to nonshareholder interests.

It also shares, I fear, a tendency to overestimate the practical stakes of abstract concepts of the corporation and fiduciary duties. This tendency takes three forms: first, a historical picture that portrays recent developments as a promising departure rather than business-as-usual; second, an assumption that certain abstract conceptions of the corporation (for …