Law Commons^™

Presidents, Secretaries Of State, And Other Visible International Lawyers, Lori Fisler Damrosch

Faculty Scholarship

I invite you to join me on a journey back ninety years, to the 1911 Annual Meeting as recorded in the 1911 Proceedings (pp. 340-41). President Rovine's predecessor, the then-president of the Society, was Elihu Root, a former secretary of war and secretary of state who was at the time senator for New York (Senator Clinton, please take note!). Root would win the Nobel Peace Prize the following year. President Root proposed a toast to the honorary president of the Society, who then gave the banquet address.

High Brow, Lee C. Bollinger

Faculty Scholarship

Terry Sandalow has an extraordinary mind, its power suggested by his incredible brow and forehead. (I'm always reminded, in fact, of Melville's description of the massive size of the sperm whale's head as representing its huge intelligence.) By any measure, Terry is very smart, broadly educated, and deeply sensitive to the nuances of life. From my earliest days on the law faculty, I remember being continually impressed, at faculty discussions and seminars, by his illuminating questions and comments and aware of his reputation among students as one of the most intellectually challenging teachers. Colleagues routinely sought his advice and criticism …

Have Moral Rights Come Of (Digital) Age In The United States?, Jane C. Ginsburg

Faculty Scholarship

More than any other contemporary American legal scholar, Professor Merryman has drawn attention to the moral rights claims of artists. Anything written in the field in the United States since 1976 owes inspiration to The Refrigerator of Bernard Buffet ("The Refrigerator") Professor Merryman's seminal article in the 1976 Hastings Law Journal. I feel this particularly acutely since I became interested in the issue as a law student, in 1978. It looked like a hopeful time, for Professor Merryman had shown the way, and the Second Circuit, in the then-recently decided Monty Python case, seemed to be paying heed. The …

Three Nearly Sacred Books In Western Law, George P. Fletcher

Faculty Scholarship

We American lawyers pride ourselves on the secular nature of our legal system. We celebrate the separation of Church and State. We think that the moving spirit of the law is to be found not in eternal truths about the universe but in the contingent needs of social and economic policy. "The life of the law has not been logic: it has been experience," said Oliver Wendell Holmes, Jr., in a sentence that since 1881 has broadcast to every new generation of lawyers the pragmatic foundations of their craft.

We assume that we have little in common with the great …

The Issuer Choice Debate, Merritt B. Fox

Faculty Scholarship

This article responds to Professor Romano’s piece in this issue. It concerns our ongoing debate with regard to the desirability of permitting issuers to choose the securities regulation regime by which they are bound. Romano favors issuer choice, arguing that it would result in jurisdictional competition to offer issuers share value maximizing regulations. I, in contrast, believe that abandoning the current mandatory system of federal securities disclosure would likely lower, not increase, U.S. welfare. Each issuer, I argue, would select a regime requiring a level of disclosure less than is socially optimal because its private costs of disclosure would be …

Norm Internalization And U.S. Economic Sanctions, Sarah H. Cleveland

Faculty Scholarship

The fifty years since the adoption of the Universal Declaration of Human Rights have seen a revolution in the promulgation and universalization of human and labor rights. Human rights conventions have proliferated in the areas of civil and political rights, social and economic rights, and the rights of women, children, minorities, and refugees. Many of these conventions have been ratified by a majority of the nations of the world. International monitoring of human and labor rights compliance is conducted by international institutions such as the U.N. Human Rights Commission and the International Labour Organization (ILO), by regional entities such as …

Company Registration And The Private Placement Exemption, Merritt B. Fox

Faculty Scholarship

Over the last twenty years, there has been a steady shift in securities disclosure regulation away from its traditional transactional basis toward a system of company registration. Under the transaction based approach, each new public offering of a security has to be registered under the Securities Act of 1933 (the "1933 Act"), a requirement that reflects the SEC's traditional concern that the most important time to have high-quality disclosure is at the moment of a securities offering. Under the company registration approach, an established, publicly traded issuer would register just once, provide information thereafter on a periodic basis, and then …

Taxing International Income: Inadequate Principles, Outdated Concepts, And Unsatisfactory Policies, Michael J. Graetz

Faculty Scholarship

It is a pleasure to be here today to deliver the first David R. Tillinghast Lecture of the 21st century, a lecture honoring a man who has done much to shape' and stimulate our thinking about the international tax world of the 20th.

Our nation's system for taxing international income today is largely a creature of the period 1918-1928; a time when the income tax was itself in childhood. From the inception of the income tax (1913 for individuals, 1909 for corporations) until 1918, foreign taxes were deducted like any other business expense. In 1918, the foreign tax credit (FTC) …

Religion And American Political Judgments, Kent Greenawalt

Faculty Scholarship

This Article addresses the extent to which officials and citizens should rely directly on their religious convictions to reach political judgments and make political arguments. Reviewing opposing "exclusive" and "inclusive" positions, this Article suggests that officials generally should not articulate arguments in religious terms. Many officials should have a greater freedom to rely on religious bases of judgments, and private citizens should not regard themselves as constrained in the manner of officials. This approach, defended initially from the perspective of detached political philosophy, fits comfortably with a variety of overarching religious views. The constraints it suggests should be regarded as …

On Insider Trading, Markets, And Negative Property Rights In Information, Zohar Goshen, Gideon Parchomovsky

Faculty Scholarship

Few issues have sparked as much debate and disagreement among Law and Economics scholars as the prohibition on insider trading. Ironically, the Supreme Court's attempts in Chiarella v. United States, Dirks v. Securities and Exchange Commission, and, most recently, in United States v. O'Hagan to clarify the scope and content of the ban on insider trading, and the subsequent reaction of the Securities and Exchange Commission ("SEC"), have only added fuel to the fire of the academic debate already raging on the issue.

The most intriguing feature of the debate on insider trading is that all contributors seek to promote …

Feminism At The Millennium, Carol Sanger

Faculty Scholarship

Sexism of all kinds – subtle and blatant, criminal and legal, commercial and private – is the topic of the three books under review. The books initially sort themselves out by discipline: Everyday Sexism and Subtle Sexism are anthologies whose editors and contributors are primarily sociologists; Speaking of Sex is written by a law professor and offers a more focused argument about the persistence of gender inequalities. Distinctions in authorship aside, the three books pose a pair of similar and painfully familiar questions: Why is so much still organized to the disadvantage of women, and what can (feminist) academics contribute …

Challenges To Fragile Democracies In The Americas: Legitimacy And Accountability, Martin Böhmer, A.R. Brewer-Carías, Helen Beatriz Mack Chang, Sarah H. Cleveland, Francisco Cox, Lourdes Flores Nano, H.W. Perry Jr., Steven Ratner, Carlos Rosenkrantz, Roberto Saba, Dean Michael Sharlot, Nicolas Shumway, Gerald Torres

Faculty Scholarship

February 25, 2000, the University of Texas School of Law hosted an extraordinary gathering to discuss the fragility of democracies in Latin America and the dangers that they face. The event was sponsored by several institutions at the University of Texas: the School of Law, the Institute of Latin American Studies, the Office of the Provost, the College of Liberal Arts Democracy in the Third Millennium Program, and the International Law Society at the School of Law.

William Warren, Lance Liebman

Faculty Scholarship

Don Rapson, then graduating from Columbia Law School and preferring not to be a foot-soldier in Korea, went to Dean Warren. The Dean said: "Go to General X in the Pentagon, tell him I sent you, and he will hire you as an Army lawyer." Don went to the Pentagon (it was probably easier to stroll in fifty years ago). The General said: "I never heard of Dean Warren." But after a lively talk Don was hired and supplied good professional service to his country.

Sentencing Eddie, Gerard E. Lynch

Faculty Scholarship

The mandatory minimum sentences attached to federal narcotics violations have come in for plenty of criticism. The United States Sentencing Commission in 1991 submitted a lengthy report critical of the mandatory minimum provisions. A political protest organization, Families Against Mandatory Minimums, has been formed, and has gotten some media attention. Newspaper columnists,professional commentators, judges, and academics, have criticized the statutes. Amidst the controversy over President Clinton's last-minute pardons of various offenders, his pardons of a number of marginal defendants sentenced to lengthy terms under these statutes have drawn little or no objection. Even Chief Justice Rehnquist, a strong voice for …

Remarks At Memorial Service For Professor Kellis E. Parker, Kendall Thomas

Faculty Scholarship

Seventeen years ago, I came to New York and Columbia University to begin a career in the legal academy. Seventeen years ago, I met Kellis Parker. The two moments run together in my mind, quite simply because my life in New York and at Columbia are inseparable from my relationship with Kellis Parker. If I had the time, I'd stand here and testify. I'd testify about the man who was my colleague, my mentor, my model, and my big-brother-in-the-law. I'd testify about the Kellis Parker who was my careful and generous critic. If I had time, I'd testify about Kellis, …

Restrictive Covenants, Employee Training, And The Limits Of Transaction-Cost Analysis, Gillian Lester

Faculty Scholarship

Restrictive covenants are an increasingly common feature of employment, used across a wide range of industries, occupations, and employees. In its most common form, a restrictive covenant prohibits an employee from competing with the employer within a certain geographic area fora specified period of time after departure, usually one or two years. Sometimes these clauses are drawn more narrowly, proscribing specific activities such as continued dealings with former customers. Regardless of scope, the typical remedy when an employee breaches such a covenant is injunctive relief.

A substantial literature within law and economics debates the merits of restrictive covenants from an …

Unemployment Insurance And Wealth Redistribution, Gillian Lester

Faculty Scholarship

This Article evaluates the merit of liberalizing unemployment insurance eligibility as a means to achieve progressive wealth redistribution-an idea that has recently gained popularity among policymakers and legal scholars. Unemployment insurance (UI) provides temporary, partial wage replacement to workers who suffer unexpected job loss, but it tends to exclude workers who have very low wages or hours of work, or who quit for reasons considered "personal" (for example, to accommodate family demands). Professor Lester argues that while redistribution to workers who are poor or who have caregiving obligations is a desirable goal, expanding UI is a poor way to do …

Taking Care, Katherine M. Franke

Faculty Scholarship

Care must be taken when human needs are expressed in the odd dialect of legal rights. This delicate act of translation – from private need to public obligation – demands acute sensitivity to the ways in which public responsibility inaugurates a new and complex encounter with a broad array of public preferences that deprive dependent subjects of primary stewardship over the ways in which their needs are met. Both Martha Fineman and Joan Williams have taken on the difficult project of making the ethical and political case for transforming dependency and care – from private or domestic need to public …

Is Article 2 The Best We Can Do?, Robert E. Scott

Faculty Scholarship

You will all be happy to know that, haying listened to my colleagues for the last three hours, I have completely forgotten what I was planning to say. But I haven't forgotten why I am here. I am the proverbial skunk at the garden party, and I hope to fulfill my role as the only skeptic in the group. I must tell you candidly, however, that I agree with everything Gail Hillebrand had to say. That doesn't mean she is going to agree with anything that I have to say, but perhaps there are two skeptics here this afternoon.

My …

The Ali And The Ucc, Lance Liebman

Faculty Scholarship

I will speak at less length than some of my colleagues here for two reasons. One is, my knowledge of this subject is extremely limited. I've taught for thirty years, but in areas of law that have nothing to do with these. And, it is only on coming to the American Law Institute job a year ago, that I find myself learning about NCCUSL, learning about all these issues, and learning in substantive ways about commercial law. Suddenly, out of the repressed memory, have come back my experiences in Professor Brancher's course in commercial law. I didn't learn it then, …

Tax Constraints On Indexed Options, David M. Schizer

Faculty Scholarship

Indexed stock option grants reward executives for outperforming a benchmark, such as the market as a whole or competitors in the same industry. These options offer superior incentives by limiting the influence of factors beyond an executive's control, such as general market and industry conditions. Yet indexed options are almost never used. Professor Saul Levmore seeks to explain this puzzle with norms. This comment on his article argues that tax plays a larger role in this puzzle than he acknowledges, although tax is not a complete explanation. Accounting and Professor Levmore's norms-based account are then briefly considered.

The Role Of Law In The Functioning Of Federal Systems, George A. Bermann

Faculty Scholarship

Federal systems are about the distribution of legal and political power, but law is not only one of the currencies of federalism, it is also one of federalism's most important supports; this chapter considers the role that law plays in establishing and enforcing the system by which both legal and political power are distributed within the USA and the EU. Bermann explores the various ways in which the courts can, and choose to, enforce the principles of federalism beyond the classical ‘political’ and ‘procedural’ safeguards provided by the institutional structures themselves and the constraints on the deliberative process. He describes …

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …