Law Commons^™

Introduction, Susan P. Sturm

Faculty Scholarship

The theme of the first Symposium issue, Rethinking Law in the Twenty-First Century Workplace, addresses a fundamental challenge facing the field of labor and employment law. Existing regulatory regimes in this area are ill-equipped to address the demands of the increasingly dynamic, unstable, and technologically-driven workplace. This Symposium brought together a diverse and creative group of scholars, public policy thinkers, and activists to discuss new frameworks for participation, inclusion, evaluation, and legal regulation in the workplace. These participants represented a variety of disciplines, including law, psychology, organizational theory, sociology, and public policy. Each of the participants brought to the table …

Copyright, Common Law, And Sui Generis Protection Of Databases In The United States And Abroad, Jane C. Ginsburg

Faculty Scholarship

What protection remains for compilations of information, particularly digital databases, since the United States Supreme Court swept away "sweat copyright" in its 1991 Feist decision? "Thin" copyright protection is still available, but it covers only the original contributions (if any) that the compiler brings to the public domain information. Moreover, Feist makes clear that padding the compilation with original added value will not flesh out the skeletal figure beneath: the information, stripped of selection, arrangement, or other copyrightable frills, remains free for the taking.

If copyright is unavailing, contract is appearing more promising, as mass-market, "shrinkwrap" and "click-on" licenses gain …

The Bylaw Battlefield: Can Institutions Change The Outcome Of Corporate Control Contests?, John C. Coffee Jr.

Faculty Scholarship

What, if anything, can institutional investors do to influence the course and outcome of corporate control contests? The traditional answer was relatively little. To be sure, institutions could tender their shares in a tender offer or vote in a proxy contest to oust the incumbent board, but such a role was essentially reactive and contingent. It required that an offer actually be made before institutions could respond on an after-the-fact basis. Similarly, institutions have occasionally conducted precatory proxy campaigns calling upon the board to redeem its poison pill, but management was free to ignore these requests (and has done so).

What Law Is Like, George P. Fletcher

Faculty Scholarship

It is not easy to do philosophy in the tradition of Wittgenstein and Malcolm. The human mind gravitates toward authority – the Bible, great teachers, poets, gurus, even judges. Lawyers, in particular, are captives of authoritive constitutions, statutes, cases, and ruling doctrines. We cannot make a move without citing a source as a backup.

Perhaps this is the way it should be, for as lawyers or legal theorists, we speak in a particular legal culture and tradition. We cultivate that tradition, even as we dissent and subject it to criticism. The tradition is defined by the authorities that have shaped …

Securities Disclosure In A Globalizing Market: Who Should Regulate Whom, Merritt B. Fox

Faculty Scholarship

One of the most dramatic examples of increasing interaction across national boundaries in recent years has been the burgeoning volume of transnational transactions in corporate equities. Most developed capitalist countries impose affirmative obligations on issuers of corporate equity to disclose certain information about themselves. While these obligations are imposed on issuers, they are triggered by transactions. The growth in transnational transactions is thus increasingly raising difficult issues concerning the reach of differing national regimes. Given the magnitude of legal resources devoted to compliance with such disclosure regulations, they promise to feature prominently in the larger discussion of the role of …

From Gladiators To Problem-Solvers: Connective Conversations About Women, The Academy, And The Legal Profession, Susan P. Sturm

Faculty Scholarship

Dissatisfaction permeates the public and professional discourse about lawyers and legal education. Diverse communities within and outside the profession are engaged in multiple conversations critiquing legal education and the profession itself. These conversations, though linked in subject matter and orientation, often proceed on separate tracks.

One set of conversations explicitly focuses on women and people of color, centering on their marginalization and underrepresentation in positions of power. Those concerned about race and gender exclusion often participate in separate communities of discourse. Indeed, the symposium that spawned this article framed the inquiry about higher education in terms of gender. This exclusive …

"Just Say Never?" Poison Pills, Deadhand Pills, And Shareholder-Adopted Bylaws: An Essay For Warren Buffett, Jeffrey N. Gordon

Faculty Scholarship

My topic is Buffett on mergers and acquisitions and how his sage advice on the importance of shareholder choice should be taken to heart by the Delaware Supreme Court, which will soon face far-reaching questions on the distribution of power between shareholders and the board of directors. Recent judicial decisions in other jurisdictions: (i) have declared that a board can maintain a poison pill in the face of a premium hostile bid, the power to "just say no;" (ii) have validated the board's adoption of a so-called "deadhand pill," a poison pill that can be redeemed only by continuing directors; …

Interpretation And Judgment, Kent Greenawalt

Faculty Scholarship

The major conclusions in Georgia Warnke's illuminating Essay, Law, Hermeneutics, and Public Debate are persuasive, but some that appear almost self-evident instead rest on controversial evaluative judgments. Many of my comments deal with these complexities, drawing from her book on interpretation and political theory as well as her Essay. Other remarks develop subjects Warnke barely touches. My thoughts are, thus, some combination of clarification, supplementation, and disagreement.

My initial effort is to refine in just what senses interpretations of texts, social practices, and legal rules must speak to our concerns. I next explore how interpretations of legal texts that are …

Presidential Rulemaking, Peter L. Strauss

Faculty Scholarship

One of the prominent issues during the 1992 presidential campaign was abortion, in particular the federal government's role in financing counseling activities that might promote it. In the Bush Administration, the Department of Health and Human Services had adopted a controversial regulation to withhold federal funds from any family planning or other medical service that included counseling about abortion in its activities; the Clinton campaign promised to rescind that regulation if Clinton were elected President. Shortly after his election, in a prominent White House ceremony, President Clinton announced that he had directed the rescission of the prior rule and the …

Employees, Pensions, And The New Economic Order, Jeffrey N. Gordon

Faculty Scholarship

The "New Economic Order" in the United States is a regime of trade liberalization, a robust market in corporate control, and labor market flexibility. Among the consequences over the 1980-1995 period is a divergence between the growth rate of corporate profits and stocks prices, which have increased by approximately 250% in real terms, and wages, which have barely increased at all, except for the top quintile. Contrary to popular belief employees have not significantly participated through their pension funds in this stock market appreciation. In the historically dominant defined benefit pension plan, the sponsoringfirm, not the employee, is the residual …

Congressional Reviews Of Agency Regulations, Daniel Cohen, Peter L. Strauss

Faculty Scholarship

On March 29, 1996, President Clinton signed Public Law 104-121, the Contract with America Advancement Act of 1996. Title II, the Small Business Regulatory Enforcement Fairness Act of 1996 ("Act"), among other things, added a new chapter 8 to Title 5 of the United States Code. Chapter 8 requires congressional review of agency regulations. Beginning March 29, 1996, all federal agencies, including independent agencies, are required to submit each final and interim final rule for review by Congress and to the General Accounting Office (GAO) before the final or interim final rule can take effect (hereinafter final and interim final …

The Truth About Secured Financing, Robert E. Scott

Faculty Scholarship

The debate over the social value of secured credit (and the appropriate priority for secured claims in bankruptcy) is entering its nineteenth year. Yet the continuing publication of succeeding generations of articles exploring the topic have yielded precious little in the way of an emerging scholarly consensus about the nature and function of secured credit. Put simply, we still do not have a theory, of finance that explains why firms sometimes (but not always) issue secured debt rather than unsecured debt or equity. Moreover (and perhaps because of the lack of any plausible general theory), we lack any persuasive empirical …

William J. Brennan, Jr., American – In Memoriam, Gerard E. Lynch

Faculty Scholarship

At Justice Brennan's funeral, President Clinton spoke of the justice's enormous impact on our country's law-thirty-four years on the Supreme Court, over 1300 opinions authored, many of them landmarks: Baker v. Carr, opening the way to one person, one vote; Craig v. Boren, wielding the Equal Protection Clause to strike down discrimination on the basis of sex; Goldberg v. Kelly, insisting on the right of the poorest citizens of the administrative state to be heard in the face of an arbitrary bureaucracy; New York Times Co. v. Sullivan, articulating the modem rationale for a free press; …

"Prescriptive Equality": Two Steps Forward, Kent Greenawalt

Faculty Scholarship

In this Response to Professor Peters, Professor Greenawalt argues that prescriptive equality does have meaningful normative force. Prescriptive equality plays a reinforcing role when it agrees with nonegalitarian justice and is not incoherent when it pulls against nonegalitarian justice. Specifically, when one individual has been treated better than is required by nonegalitarian justice, a similarly situated and significantly related individual who is aware of that treatment may merit equivalent treatment because of widespread and deep-seated feelings about equality.

Strategy And Force In The Liquidation Of Secured Debt, Ronald J. Mann

Faculty Scholarship

The question of why parties use secured debt is one of the most fundamental questions in commercial finance. The commonplace answer focuses on force: A grant of collateral to a lender enhances the lender's ability to collect its debt by enhancing the lender's ability to take possession of the collateral by force and sell it to satisfy the debt. That perspective draws considerable support from the design of the major legal institutions that support secured debt: Article 9 of the Uniform Commercial Code and the less uniform state laws regarding real estate mortgages.

Both of those institutions are designed solely …

The Fine Art Of Judging: William T. Allen, Ronald J. Gilson

Faculty Scholarship

I feel more than a little conflicted about writing to commemorate Bill Allen's completion of his term as Chancellor of Delaware. Economists understand the inefficiencies that result when private and public benefits diverge: people seek their advantage even though the public bears more than offsetting costs. That pretty well describes the dissonance I'm experiencing about this event. The benefit to me of gaining a good friend as a neighbor, and to the NYU Law School community from the addition of this remarkable man as a colleague and teacher, are dwarfed by the cost to the entire corporate law community from …

Municipal Powers Under Seqra, Michael B. Gerrard

Faculty Scholarship

The State Environmental Quality Review Act (SEQRA) confers considerable powers on New York State municipalities. In fact, most municipalities are probably unaware of the full scope of authority they are given by this statute.

Spending Limits And The Squandering Of Candidates' Time, Vincent A. Blasi

Faculty Scholarship

Today I begin with a narrow agenda, a single idea, but an extravagant ambition. My narrow agenda is that I wish to address only the topic of campaign spending limits, and only the issue of their constitutionality in the face of First Amendment objections. The policy questions regarding whether spending limits are equitable, efficacious, and/or enforceable are deeply difficult and interesting but beyond my ken on this occasion.

My single idea is that spending limits are best justified on the ground that they protect candidates for office from having to devote an inordinate amount of their time to the task …

Reading Holmes Through The Lens Of Schauer: The Abrams Dissent, Vincent A. Blasi

Faculty Scholarship

Even the best scholars rarely persuade. Mostly, they illuminate. They make us more discerning readers and interlocutors.

Here I want to illustrate how Frederick Schauer's work on the law of free speech can help us to read what may be the single most influential judicial opinion ever written on that subject, Justice Holmes's famous dissent in Abrams v. United States. So far as I am aware, Schauer has not produced anything like a line-by-line parsing of the Holmes opinion. I claim nevertheless that a reader familiar with Schauer's ideas is far better prepared on that account to understand what Holmes …

In Honor Of Stefan A. Riesenfeld, Lori Fisler Damrosch

Faculty Scholarship

In this issue dedicated to Professor Riesenfeld, his achievements as a scholar and teacher will appropriately receive central attention. As a contributor who also worked with him in his Washington days, I would like first to recall a few anecdotes from that time (which I hope he remembers as fondly as I do) and then turn to an assessment of his contributions to the literature on the interface between the constitutional and international law of treaties.

Rethinking Disclosure Liability In The Modern Era, Merritt B. Fox

Faculty Scholarship

The state of issuer disclosure in 1997 is like the proverbial half-filled glass. On one hand, as Dean Seligman has amply demonstrated in his contribution to this symposium, the glass is half empty in the sense that the legal incentives for established issuers to engage in high quality disclosure at the time that they sell new securities have decreased in recent decades. Due to the more liberal exemptions available under Regulation S, Rule 144A, Regulation D and Regulation A, a much smaller portion of such sales is even subject to the formal disclosure oriented registration process under Section 5 of …

The Future Of Corporate Governance In The United States, Ronald J. Gilson

Faculty Scholarship

This article is an interview of Professor Ronald J. Gilson, Charles J. Meyers Professor of Law and Business, Columbia University Law School. The interviewer is Cheryl L. Conner, a third year law student at the University of Richmond School of Law and the Managing Editor of the Richmond Journal of Law and Technology.

The Shaping Force Of Corporate Law In The New Economic Order, Jeffrey N. Gordon

Faculty Scholarship

My topic for this Allen Chair lecture is the shaping force of corporate governance in the new economic order. It is easy to think of corporate law as an arcane field with mysterious terms and peculiar rules, ultimately of interest only to those who are prepared to bill at least 2000 hours a year to unravel its complexities. This is the view that there is a pointless mystery about shareholders, directors, common stocks, debentures, and the bizarre creature my class encountered recently, a convertible exchangeable cumulative preferred stock; and that ultimately corporate law and practice consists of the expert manipulation …

Controlling Strategic Voting: Property Rule Or Liability Rule, Zohar Goshen

Faculty Scholarship

Strategic voting – situations where voters place their votes according to their assessment of how other voters will behave rather than according to their actual preference – results in distorted decisionmaking. Strategic voting can cause the company to lose desired transactions and can also be used to coerce voters into accepting alternatives they would have otherwise rejected. An analysis of the various types of strategic voting situations which arise in corporate law demonstrates the author's argument that strategic voting is inherent in the voting mechanism, regardless of the type of group involved or of the decision being made. Maintaining a …

From The Bottom Up, Kent Greenawalt

Faculty Scholarship

This Article is about carrying out informal instructions given by people in authority. Although many scholars have written about how legal interpretation resembles interpretation in fields such as literature and religion, few have compared informal instructions and legal rules. My most basic assumption in this Article is that focus on informal situations can illumine the standards people use in performing instructions and the kinds of meaning they attribute to instructions. As my title implies, if we reflect on what amounts to faithful or desirable performance of informal directives and the more conceptual question of what these prescriptive standards "mean," we …

Nature Of Rules And The Meaning Of Meaning, Kent Greenawalt

Faculty Scholarship

This essay addresses two problems in legal theory. What is the nature of rules, especially legal rules? What is the meaning of a legal rule?

My main concern is the relation between these two questions. I inquire whether a sensible view of how rules work commits one to any particular approach to meaning. For this inquiry, I focus on Frederick Schauer's illuminating treatment of rules in Playing by the Rules, which he says is linked to a particular view of meaning. I assert that the linkage is much less tight than he supposes, and that competing theories about meaning are …

Comments On Campaign Finance Reform, Henry P. Monaghan

Faculty Scholarship

Realistically viewed, the public does not care much about campaign finance. However, the commentators and politicians involved with the campaign process care a great deal. Yet, of those who have expressed any view at all about our topic, few still believe that the existing distinction between expenditures and contributions is satisfactory.

I agree with Judge Winter's statement that, from the point of view of the speaker, the distinction between contributions and expenditures is pretty weak. This is because the choice between the two is made by a donor, who looks for the most efficient way to espouse political ideas and …

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 …

Provisional Relief In Transnational Litigation, George A. Bermann

Faculty Scholarship

In this article, Professor Bermann identifies and analyzes the principal problems raised by the rapidly growing phenomenon of transnational provisional relief National courts are facing serious challenges in organizing such interventions, but as yet lack a sufficiently comprehensive framework of analysis. The author begins with the clarifying distinction that provisional relief may be transnational either because of its significant effects abroad or because it lends support to protective measures ordered by foreign courts, and draws on the experiences of U.S. and foreign courts in determining the costs of both granting and withholding provisional relief He concludes that, despite the very …

Brave New World?: The Impact(S) Of The Internet On Modern Securities Regulation, John C. Coffee Jr.

Faculty Scholarship

It is now a trite commonplace that the advent of the Internet will in time revolutionize securities regulation. Merely the facts that the Internet has somewhere between thirty and sixty million users worldwide today (with an estimated ten to thirty million in the United States) and that some 800,000 U.S. investors already have online brokerage accounts establish that there is a potential global market that can be accessed at very low cost. But the magnitude of the market says little about what will be the character and effect of this approaching revolution.

Technological change is not a new phenomenon for …