Law Commons^™

A Comparative Assessment Of Eu, Uk, French, Australian And Japanese Responses To Auditor Independence: The Case Of Non-Audit Tax Services, Richard Thompson Ainsworth

Faculty Scholarship

Auditor independence was a global concern of financial regulators in the 1990's. Some observers saw this in a positive light, a natural development. Adjusting auditor independence rules was a manifestation of global convergence in corporate governance structures. New rules, especially rules leaning toward a harmonized system were welcome.

There was a more sobering view. This view held that global regulators were less concerned with convergence than they were with a sense of impending disaster. Things had gone too far. Significant, maybe even radical change was needed. The independence of corporate auditors had eroded; trust had been fundamentally compromised in the …

Brief Of Keith N. Hylton As Amicus Curiae In Support Of Petitioners In Greg Johnson, Et Al. V. Ford Motor Company, Keith N. Hylton

Faculty Scholarship

This Court last addressed the legal framework for setting the amount of punitive damages in Adams v. Murakami (1991) 54 Cal.3d 105. In Adams, this Court declined to reach the argument advanced by the Association for California Tort Reform advocating “the profitability of the defendant’s misconduct” as the appropriate financial measure in fixing punitive damages. Id. at 116 n.7. For this argument to be advanced by such a pro-defendant trade association is hardly an anomaly. It appears typical, evidently based on the sensible assumption that in the setting of punitive damages, a focus on a defendant’s illicit profits will frequently …

Corrective Justice, Equal Opportunity, And The Legacy Of Slavery And Jim Crow, David B. Lyons

Faculty Scholarship

Chattel slavery was a brutally cruel, repressive, and exploitative system of racial subjugation. When it was abolished, the former slaveholders owed the freedmen compensation for the terrible wrongs of enslavement. Ex-slaves sought reparations, especially in the form of land, but few received any sort of recompense. The wrongs they suffered were never repaired.

No one alive today can be held accountable for the wrongs of chattel slavery, and those who might now be called upon to pay reparations were not even born until many decades after slavery ended. For some scholars, the lack of accountable parties makes current reparations claims …

Introduction Symposium: The Jurisprudence Of Slavery Reparations: Introduction, Keith N. Hylton

Faculty Scholarship

On April 9th and 10th, 2004, Boston University School of Law sponsored a symposium titled The Jurisprudence of Slavery Reparations. As the principal conference organizers, we are pleased and a bit awestruck to see the symposium contributions published in this issue of the Boston University Law Review. The papers published here - in the first symposium of its kind in a major law review - should serve as an immensely valuable reference on the jurisprudence of reparations

Private Law And Public Stakes In European Integration: The Case Of Property, Daniela Caruso

Faculty Scholarship

In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those ‘public’ matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States’ property systems, restated both in the TEC and in the draft Constitution, cannot be …

Why Do Plaintiffs Sue Private Parties Under Section 1983, Jack M. Beermann

Faculty Scholarship

The subject of this article is why people make federal cases, under section 1983,' out of claims they have against private parties. Section 1983 provides a cause of action against "any person" who, while acting "under color of' state law, subjects or causes the plaintiff to be subjected to a violation of federal constitutional or statutory rights. The requirement that the defendant act under color of law means that the typical section 1983 claim is brought against state and local government officials or entities, not against private individuals or entities. However, there are situations in which a private party (i.e. …

Governing By Negotiation: The Internet Naming System, Tamar Frankel

Faculty Scholarship

This Article is about the governance of the Internet naming system. The subject is fascinating, not simply because the naming system is an important system affecting the Internet, although it is; and not because the Internet is important, although it is. The subject is fascinating because it offers a rare opportunity to examine and learn from the evolution of an incoherent governance structure. The naming system is special in that it is the product of a new technology; it reflects the changes and pressures brought by the new technology, and involves the interests of government and private entities, domestic and …

How Like A Winter? The Plight Of Absent Class Members Denied Adequate Representation, Susan P. Koniak

Faculty Scholarship

Class actions assume absent class members. ² Notices in class actions tell class members that they need not show up in the courthouse, although they may if they choose.³ Class members are told that class counsel and the named class representatives will look out for them, although if they choose to hire their own lawyer, she may appear on their behalf.⁴ They are also routinely told that once the decision in the class action becomes final they will be bound by it, losing any and all right to protest the resolution of their claims by the class action …

Theater In The Courtroom, The Chicago Conspiracy Trial, Pnina Lahav

Faculty Scholarship

The Chicago Conspiracy Trial (otherwise known as the Chicago Seven Trial) is a Rorschach test of American society in the late 1960s and early 1970s. Following the riots at the Democratic Convention in Chicago in 1968, leaders of the antiwar movement, the counterculture and the Black Panthers were put on trial for a "conspiracy to cross state lines with intent to incite a riot." The trial has been too easily dismissed as a circus, not worthy of legal attention, when in fact it does contain important legal insights. This paper suggests that the theory of the theater provides the key …

The Supreme Court's Limitation Of Managed-Care Liability, Wendy K. Mariner

Faculty Scholarship

This article summarizes and critiques the U.S. Supreme Court's decision in Aetna Health Inc. v. Davila, which limited managed care organizations' liability for negligent decisions about the care of patients in private employer-sponsored health plans governed by ERISA. It contrasts the Court's dichotomous view of health benefit plans, in which insurers administer contracts and treating physicians make medical judgments, with the more complicated relationships that affect decisions about both coverage and treatment.

Law, Economics, And The Theory Of The Firm, Michael J. Meurer

Faculty Scholarship

Economic analysis of the law assumes the "shadow of the law" influences the behavior of businesses. Thus, business people consider the costs and benefits of contract litigation when they make decisions about contract performance, they consider the costs of tort litigation when they make investments in safety, they consider the costs of violating a regulation when they make decisions about regulatory compliance, and so on. Economic models of law typically abstract from organizational detail and treat businesses as if they are represented by a single manager who controls the firm's behavior and acts to maximize its profit. This abstraction simplifies …

Too Many Markets Or Too Few? Copyright Policy Toward Shared Works, Michael J. Meurer

Faculty Scholarship

Proper analysis of sharing requires attention to the ways copyright law shapes markets. It also requires an analytic framework that identifies the gains and losses to copyright owners and users operating under the different market forms that can be sustained by different versions of copyright law. My framework will help judges avoid two mistakes that a market failure orientation invites. First, some judges overemphasize transaction costs and fail to appreciate the reasons to apply fair use to sharing even when negotiation and payment costs are zero. One reason is well known: sharing that generates positive externalities may be treated as …

History In Journalism And Journalism In History: Anthony Lewis And The Watergate Crisis, Pnina Lahav

Faculty Scholarship

Let me plunge right into a Lewis column to convey his marvelous craft in weaving the past into a contemporary moment. This one is from July 8, 1974. The column is about the oral argument before the Supreme Court in the Executive Privilege case, which was about to enter the constitutional canon as United States v. Nixon. Lewis writes as both eyewitness and commentator. He begins with constitutional history invoking Marbury v. Madison:

"It seemed at times like a constitutional casebook come to life. Marbury v. Madison was not only cited but, for a moment, debated. What exactly …

Market Symmetry And The Tax Efficiency Of Equity Compensation, David I. Walker

Faculty Scholarship

At first blush, the deferral of employee income recognition associated with equity compensation appears to provide a tax advantage in a rising market but an offsetting disadvantage in a declining market. Merton Miller and Myron Scholes argued, however, that this apparent symmetry is misleading and that employees can hedge to ensure tax efficiency despite market uncertainty. This article demonstrates that the effect of employee hedging is fairly small, but that a combination of factors, including capital loss limitations, the possibility of employee-favorable ex post adjustments to equity compensation arrangements, and employee hedging, do cause compensatory stock grants and nonqualified options …

Why Don’T Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller

Faculty Scholarship

Health care in America is an expensive, complicated, inefficient, tangled mess – everybody says so. Patients decry its complexity, health care executives bemoan its lack of coherence, physicians plead for universal coverage to simplify their lives so they can just get on with taking care of patients, and everyone complains about health care costs. The best health care in the world is theoretically available here, but we deliver and pay for it in some of the world’s worst ways. Occam’s razor (“Among competing hypotheses, favor the simplest one”) is of little help here. There are no simple hypotheses – everything …

Medical Malpractice And Contract Disclosure: An Equilibrium Model Of The Effects Of Legal Rules On Behavior In Health Care Markets, Kathryn Zeiler

Faculty Scholarship

This paper develops a theoretical model of how specific legal rules affect the types of contracts managed care organizations ("MCOs") use to compensate physicians. In addition, the analysis provides insights into how physician treatment decisions and the rate of medical malpractice lawsuits react to different legal rules. In particular, the model predicts that outcomes in jurisdictions forcing MCOs to disclose physician contract terms to patients differ from those that do not. Contracts vary depending on the disclosure rule and how treatment costs relate to expected damages and litigation costs. Moreover, the model predicts that jurisdictions forcing contract disclosure observe higher …

Lawrence's Republic, James E. Fleming

Faculty Scholarship

I am delighted and honored to participate in this symposium critiquing and celebrating the remarkable scholarship of Frank Michelman. I was a student of Frank-but of course we all are students of Frank. I also have had the good fortune to be a colleague of Frank-he has been a distinguished visiting professor at Fordham and has generously participated in a number of our conferences there. The only problem I had in preparing for the symposium is that Frank's scholarship is so rich and wide-ranging that it was difficult to decide what to write about. I initially planned to write a …

Securing Deliberative Democracy, James E. Fleming

Faculty Scholarship

The brochure for the conference frames the questions for our panel on The Constitutional Essentials of Political Liberalism as "What are the implications of Rawls's conceptions of justice as fairness and political liberalism for constitutional theory? Might his account of constitutional essentials provide a useful guiding framework for conceiving the scheme of basic liberties embodied in the American Constitution? How thin are the commitments of our Constitution as compared with our richer commitments to constitutional justice and political justice? What are the implications of Rawls's work for theory of judicial review and for enforcement of constitutional rights and obligations outside …

Temporary Protection As An Instrument For Implementing The Right Of Return For Palestinian Refugees, Susan M. Akram, Terry Rempel

Faculty Scholarship

The article argues for an internationally harmonized approach to temporary protection for Palestinian refugees and stateless persons. Temporary protection offers protection rights to this huge population of refugees that they lack in any of the main regions in which they have sought refuge. The article establishes the legal framework for temporary protection in the particular historical, legal and political context of the Palestinian refugee situation. It argues for the urgency of a harmonized rights-based protection regime.

Who's The Boss? Controlling Auditor Incentives Through Random Selection, David B. Kahn, Gary S. Lawson

Faculty Scholarship

It took the promise of knowledge to get Eve to yield to temptation. For people outside the Garden of Eden, money often does the job nicely. The U.S. capital markets are the locus of an enormous amount of money-and therefore of an enormous temptation for people who provide financial information to those markets to skew the reporting process to promote their own interests. The risk and potential consequences of skewed financial reporting are matters of grave concern.

The Law's Many Bodies, And The Manuscript Tradition In English Legal History, David J. Seipp

Faculty Scholarship

Sir John Baker's recent book The Law's Two Bodies supplies a happy occasion to celebrate and reflect on Professor Baker's unique place within the field of English legal history today

Students beginning their study of this subject can well imagine the long history of the English common law as an hourglass. The wide upper chamber of the hourglass is the rich, complex, intricate medieval law of the Year Books. The wide bottom chamber is the equally rich, complex, intricate but very different caselaw of the modem age. The narrow neck of the hourglass can be imagined as the mind of …

"No Provincial Or Transient Notion": The Need For A Mistake Of Age Defense In Child Rape Prosecutions, Jarrod F. Reich

Faculty Scholarship

Suppose a state legislature enacted a law making any theft a crime punishable by twenty years' imprisonment. Within this law was a provision precluding an accused from introducing evidence that he unwittingly took property to which he was not entitled. Suppose further that after this law was enacted, an elderly woman hung her black coat in a restaurant's lobby and, upon leaving, mistakenly retrieved another's black coat.1 Under the hypothetical statute, her mistake could neither hinder the prosecution's case against her nor be asserted by her as a defense. By inadvertently taking another's coat from a crowded restaurant, the woman …

Patents And The Diffusion Of Technical Information, James Bessen

Faculty Scholarship

Does the disclosure requirement of the patent system encourage the diffusion of inventions? This paper builds a simple model where firms choose between patents and trade secrecy to protect inventions. Diffusion is not necessarily more likely with a patent system nor is the market for technology necessarily greater.

Interviewing Ex-Employees: One Answer, New Questions, Susan P. Koniak

Faculty Scholarship

In Clark v. Beverly Health and Rehabilitation Services, Inc., 440 Mass. 270, 797 N.E.2d 905 (2003), the Supreme Judicial Court held that a lawyer for a party may contact former employees of the opposing party without violating Mass. r. Prof. C. 4.2. Lawyers who represent entities with former employees are not happy because, where 4.2 applies, the Rule makes it harder for the other side's lawyers to obtain information that might be damaging to the organization. Understandable. But some purport to be aghast, which is ridiculous. The Clark holding is in line with the ABA's position, the text of …

Render Copyright Unto Caesar: On Taking Incentives Seriously, Wendy J. Gordon

Faculty Scholarship

This Essay suggests we bifurcate our thinking. Conventional copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Much recent scholarship contains dramatic suggestions to secure a freedom to be creative, rewrite, and be imaginative. My work has long sought to defend such freedoms, but I believe we understand imagination and its conditions too little to employ it as a starting point. I suggest instead that we acquire a better conceptual map of the generative process and …

Trademarks And Consumer Search Costs On The Internet, Stacey Dogan

Faculty Scholarship

In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by …

An Offer Of Firm Resettlement, Robert D. Sloane

Faculty Scholarship

The Attorney General lacks discretion to grant asylum to any refugee "if, prior to arrival in the United States, he or she entered into another nation with, or while in that nation received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement." This rule, the doctrine of firm resettlement, is unique among the mandatory bars to asylum in the United States. It does not reflect a societal judgment about the moral fitness of an asylum applicant's character-as, for example, does the bar that prohibits granting asylum to persons with a history of violent criminal behavior. …

Gaining Momentum: A Review Of Recent Developments Surrounding The Expansion Of The Copyright Misuse Doctrine And Analysis Of The Doctrine In Its Current Form, Woodrow Hartzog

Faculty Scholarship

The United States intellectual property ("IP") system is the foundation for incentives for authors and inventors to create and invent so that their work will be distributed to the public for the betterment of society. These incentives, in the form of limited monopolies over creations via patents, copyrights, and trademarks, are becoming increasingly important as the United States depends upon intellectual property to sustain its economy. As the intellectual property industry grows, it becomes vital to preserve the impetus behind its creation: the public good, or more specifically, the public's ability to make use of and enjoy new ideas and …

Making A Federal Case Of It: Sabri V. United States And The Constitution Of Leviathan, Gary S. Lawson

Faculty Scholarship

The popular expression “Don't make a federal case out of it!” only makes sense if federal involvement is something unusual or special that is reserved for matters of urgent national interest. It assumes that a “federal case” is, or at least ought to be, something relatively rare and noteworthy.

For the founding generation, federal involvement in people's affairs, especially through the criminal law, was in fact a relatively rare and noteworthy event. In The Federalist, James Madison told the citizens of New York that the powers of the proposed new national government “will be exercised principally on external objects, as …

Indirect Expropriation And Its Valuation In The Bit Generation, Robert D. Sloane

Faculty Scholarship

Bilateral investment treaties (BITs), which have proliferated at an astonishing pace in the past decade, commonly seek to establish a stable, orderly framework for foreign investment by creating "favorable conditions for greater investment by nationals and companies of one state in the territory of the other state." Unlike their predecessors of an earlier generation, i.e., friendship, commerce, and navigation treaties (FCNs), in the area of foreign investment, BITs require more than the mere prohibition of expropriation without compensation. The BIT generation, weaned on Hayek and navigating amid the detritus of hundreds of well-intentioned but disastrous multilateral and national development programs, …