Law Commons^™

Public Contracts, Private Contracts, And The Transformation Of The Constitutional Order, Thomas W. Merrill

Faculty Scholarship

Modern interpretation of the Contract Clause of article 1, section 10 has created a dual standard of judicial review that bottoms upon the classification of a particular contract as public or private. However, which particular category has received greater deference has changed depending upon the precedential climate. Within his Article, Professor Merrill outlines three modern justifications for affording greater protection to public obligations “Kantian theory,” “process theory,” and “utilitarian theory.” He argues, however, that none of these theories adequately justify the dual standard of review, and concludes that a unitary analysis of the contract clause that affords no presumptions in …

Rethinking The Class Action: A Policy Primer On Reform, John C. Coffee Jr.

Faculty Scholarship

Today, virtually everyone has a proposal for "reforming" class action litigation but both consensus and coherence are lacking. Some proposals are bluntly restrictive. For example, the Reagan Administration would reduce attorney's fees, place a ceiling on product liability, and partially repeal treble damage statutes. In the same vein, the United States Supreme Court has shown itself parsimonious on the question of fee awards, by authorizing fee waivers, approving offers of settlement that seemingly permit fee shifting against the plaintiff's attorney, and curtailing the traditional bases on which a fee award may be enhanced. Other proposals have offered essentially neutral procedural …

Social Theory And Political Practice: Unger's Brazilian Journalism, William H. Simon

Faculty Scholarship

Roberto Mangabeira Unger is a citizen of Brazil. While working on Politics, his large-scale treatise on social theory, he has been active in his country's politics. Among the fruits of these activities is a series of political and programmatic commentaries on Brazil published in the Brazilian press. The commentaries apply the style of political analysis and the general political program elaborated in Politics to the recent circumstances of Brazil. Thus, they give an extended illustration of Unger's general social theory. At the same time, they exemplify a form of political writing that attempts to combine ambitious critical social theory …

Law And Morality: A Kantian Perspective, George P. Fletcher

Faculty Scholarship

The relationship between law and morality has emerged as the central question in the jurisprudential reflection of our time. Those who call themselves positivists hold with H.L.A. Hart that calling a statute or a judicial decision "law" need not carry any implications about the morality of that statute or decision. Valid laws might be immoral or unjust. Those who resist this reduction of law to valid enactments sometimes argue, with Lon Fuller, that moral acceptability is a necessary condition for holding that a statute is law; or, with Ronald Dworkin, that moral principles supplement valid enactments as components of the …

Quantity And Price Adjustment In Long-Term Contracts: A Case Study Of Petroleum Coke, Victor P. Goldberg, John R. Erickson

Faculty Scholarship

Much economic activity takes place within a framework of complex, long-term contracts. While economists have shown increased interest in these contracts, surprisingly little is known about them, or, indeed, about how to analyze the contracting activity of private economic actors. A case study of the actual contracts used in one industry could provide sorely needed data about the way in which reasonably clever businessmen and lawyers cope with problems scholars might consider intractable. In this article, we provide such an analysis of contracts concerning a particular product – petroleum coke. We focus on the problems of quantity and price adjustment. …

One Hundred Fifty Cases Per Year: Some Implications Of The Supreme Court's Limited Resources For Judicial Review Of Agency Action, Peter L. Strauss

Faculty Scholarship

Recent writing about the Supreme Court has stressed the implications of the extraordinary growth in the Court's docket – and, even more, the growth in the overall level of judicial activity in the nation's courts – for its performance of its judicial task. Generally, this writing seeks first to determine whether the Court has been forced to bypass questions it ought normally to hear (for example, square conflicts between two of the federal circuits), editorializes about the increasing bureaucratization of the Court, and passes on to normative questions about what if anything ought to be done to ease the Court's …

Contributions Of Victimization To Delinquency In Inner Cities, Jeffery Fagan, Elizabeth S. Piper, Yu-Teh Cheng

Faculty Scholarship

The relationship between victimization and criminality has been widely cited in recent years. Early thinking and public perceptions about crime intuitively presumed that criminals were distinct from their victims. Crime control policies resulted which promoted the physical separation of victims from predatory offenders through "target hardening" and "defensible space." Such distinctions, however, ignored the empirical evidence on the considerable overlap between offender and victim profiles and distorted the reality of events in which persons are labelled as victims or victimizers based only on the consequences of the event. Given the homogeneous relation between victim and offender, theories of crime that …

Formal And Functional Approaches To Separation-Of-Powers Questions – A Foolish Inconsistency?, Peter L. Strauss

Faculty Scholarship

Is it possible to give contemporary shape to the principles of constitutional structure we know as "separation of powers"? That question was sharply presented once again on the final day of the Supreme Court's most recent Term, when it decided two cases raising separation-of-powers issues. In Bowsher v. Synar, the subject of this symposium, the Court found constitutional fault in Congress's asserted expansion of its own powers at the expense of the President's article II authority. Commodity Future Trading Commission v. Schor, far less widely noted, upheld against constitutional challenge Congress's assignment to an administrative adjudicator of the …

Immigration Reform And Control Of The Undocumented Family, Carol Sanger

Faculty Scholarship

The Immigration Reform and Control Act of 1986 (IRCA), Congress' attempt to clean up the problem of illegal immigration in the United States, puts a great number of undocumented alien families, mostly Mexican, to a hard test. Under IRCA's amnesty provisions, every alien must individually meet the eligibility requirements, such as having lived in the United States since before January 1, 1982. But many aliens who satisfy these requirements have spouses or children who do not. Thus, while eligible aliens may adjust to a legal immigration status, their ineligible family members must either leave the United States or remain illegally, …

Foreign States And The Constitution, Lori Fisler Damrosch

Faculty Scholarship

This article does not advocate judicial abstention from deciding the constitutional claims of foreign sovereigns. Rather, the argument is that constitutional claims against the actions of the federal political branches must fail on the merits because of the relationship of foreign states to the federal structure. When, on the other hand, a claim does not directly confront or conflict with the political branches' foreign policy, the federal courts should adjudicate the merits of foreign state claims by applying constitutional jurisprudence to sustain or reject the claim. Part III of this article elaborates upon the relationship between the thesis in Part …

The Universal And The Particular In Legal Discourses, George P. Fletcher

Faculty Scholarship

My target in this article is a set of views that I shall call the functionalist perspective of comparative law. Of course, the word "functionalist" stands for a number of different theories. In order to be precise about the view that I oppose, I shall set my sights on the arguments developed in Otto Kahn-Freund's inaugural lecture Comparative Law as an Academic Subject, published two decades ago.

Conflict And Cooperation In Long-Term Contracts, Robert E. Scott

Faculty Scholarship

This Article uses the techniques of modern decision analysis and game theory to analyze the decisionmaking strategies of parties to long-term commercial contracts. Most parties to long-term contracts initially allocate the risks of future contingencies and agree – either explicitly or implicitly – to adjust this initial risk-allocation scheme if unanticipated events occur. Once contract risks are initially distributed, however, each party's self-interest may compel them to evade their responsibility rather than adjust cooperatively as originally agreed. Visualizing the interactions between contracting parties as an iterated prisoner's dilemma, the Author attempts to clarify the dynamics of this adjustment process. Professor …

Rent Seeking And The Compensation Principle, Thomas W. Merrill

Faculty Scholarship

The reaction to Richard Epstein's Takings has been almost universally negative. Joseph Sax finds Epstein the "prisoner of an intellectual style so confining and of a philosophy so rigid that he has disabled himself from seeing problems as beyond the grasp of mere formalism." Thomas Grey concludes that "Takings belongs with the output of the constitutional lunatic fringe" and is "a travesty of constitutional scholarship." Thomas Ross, writing in this Law Review, says that, at least from an academic perspective, Takings is "a patent and howling failure." Epstein has provoked even the student editors of the Harvard Law Review …

Troubled Marriage Of Retirement Security And Tax Policies, Michael J. Graetz

Faculty Scholarship

This Article concentrates on equitable and distributional aspects of the retirement security problem, although the unified view taken here seems essential to an adequate assessment of the fairness or efficacy either of the three components taken together or of any one of the three. Moreover, because tax legislation serves as the dominant public mechanism for implementing national retirement policy, whether through funding Social Security via the payroll tax or providing tax incentives for both private pensions and individual savings, a unified view of retirement security policy highlights interrelationships, confluences, and potential conflicts between retirement security and tax policy concerns.

This …

Evaluating Dual Class Common Stock: The Relevance Of Substitutes, Ronald J. Gilson

Faculty Scholarship

The proposal of the New York Stock Exchange to end its prohibition on listing the securities of companies with dual classes of common stock has focused public policy debate over this evolution in capital structure both too broadly and too narrowly.

The debate has been too broad because it has encompassed one situation – an initial public offering by a company with a capital structure containing dual class common stock – that should not be controversial at all. Whatever may have originally prompted the New York Stock Exchange's longstanding prohibition against listing non-voting common stock or common stock with voting …

Bargaining In The Shadow Of Eminent Domain: Valuing And Apportioning Condemnation Awards Between Landlord And Tenant, Victor P. Goldberg, Thomas W. Merrill, Daniel Unumb

Faculty Scholarship

Who has a constitutionally protected "property" interest when the government condemns land subject to a lease? Is it the landlord? The tenant? Or do both parties have property rights that entitle them to compensation? Further, how should the size of the total condemnation award be determined? Should we value the property rights of the landlord and the tenant separately and sum? Or should we value the entire parcel as if it were an undivided fee simple and apportion the award between the landlord and the tenant? If the condemnation award is based on the value of a fee simple and …

Are We A Nation Of Tax Cheaters? New Econometric Evidence On Tax Compliance, Jeffrey A. Dubin, Michael J. Graetz, Louis L. Wilde

Faculty Scholarship

In 1982, then Commissioner of Internal Revenue Roscoe Egger reported to Congress that legal sector noncompliance with the Federal Income Tax statutes generated an "income tax gap" of $81 billion in 1981, up from $29 billion in 1973. He further projected a gap of $120 billion for 1985 (U.S. Congress, 1982). Perceptions of accelerating noncompliance inspired a crisis mentality within the Internal Revenue Service, Congress, and the tax bar.

The IRS responded in part by funding a major independent study of tax noncompliance via the National Academy of Sciences, and the American Bar Foundation initiated an investigation of its own …

The Unmet Challenge Of Criminal Theory, George P. Fletcher

Faculty Scholarship

The last several decades have witnessed an outpouring of serious articles bringing to bear the methods of analytic philosophy to the issues of substantive criminal law. J. L. Austin, a philosopher and not a lawyer, may have been the first to demonstrate the potential of probing legal concepts such as mistake and accident, justification and excuse, for their philosophical potential. H.L.A. Hart carried forward the literature with several path breaking essays on criminal law. It is only in the last few years, however, that we have encountered an explosion of interest in the basic questions of criminal law. As the …

The Court's Role In Congressional Federalism: A Play With (At Least) Three Acts, Philip C. Bobbitt

Faculty Scholarship

The constitutional drama that climaxed in the Garcia case can be usefully understood, by a theatrical metaphor, as a play in three acts. In the first act, the principal characters are introduced and the problematic nature of their relationship established; the way the characters understand their problems creates their problems. In the second act an attempt made to overcome the conflict of the first act serves only to intensify the struggle and even threatens values widely shared by the players. In the third act, a futile effort is made to resolve the tensions that now appear almost inevitable among such …

Congress And The Executive: Who Calls The Shots For National Security? – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Professor Firmage's reaffirmation of the Framers' conception of a President who would wait for congressional instructions appeals to traditional values of democratic control and congressional primacy that have deep roots in our national consciousness. But this model of presidential passivity has some of the same strengths and weaknesses as the advocacy of chastity to solve today's problems of teenage pregnancy and sexually transmitted disease. The basic values may be sound, but when one moves from the assertion of those values to the identification of policy prescriptions, then it becomes clear that contemporary problems are too complex to be solved by …

Wade H. Mccree, Jr., Lee C. Bollinger

Faculty Scholarship

Wade McCree was a member of the Michigan Law School faculty for six years. He came to us not as a young and inexperienced person but as a distinguished jurist and public official. He was the Lewis M. Simes Professor of Law. He taught courses on constitutional litigation, the legal profession, and constitutional law.

Now these are the biographical details of Wade McCree's time with the Law School. But what images remain and will remain upon our parting? What is the spirit that Professor McCree added to our institution, to us as students and as colleagues?

The Regulation Of Entrepreneurial Litigation: Balancing Fairness And Efficiency In The Large Class Action, John C. Coffee Jr.

Faculty Scholarship

Just as war is too important to be left to generals, civil procedure – with apologies to Clemenceau – is too important to be left to proceduralists. Although it would be a serious overstatement to claim that all civil procedure scholars are confined by a tunnel vision focused only on the Federal Rules of Civil Procedure, they have as a group been reluctant to engage explicitly in incentive-based reasoning and seem particularly hesitant to reexamine what they must know to be a noble myth: namely, that the client can and should control all litigation decisions. Within an important and expanding …

Rico: The Crime Of Being A Criminal Parts I And Ii, Gerard E. Lynch

Faculty Scholarship

One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. Passed in 1970 as title IX of the Organized Crime Control Act of 1970, RICO has attracted much attention because of its draconian penalties, including innovative forfeiture provisions; its broad draftsmanship, which has left it open to a wide range of applications, not all of which were foreseen or intended by the Congress that enacted it; and the sometimes dramatic prosecutions that have been brought in its name.

RICO's complexity has attracted several efforts to unscramble …

Rico: The Crime Of Being A Criminal Parts Iii And Iv, Gerard E. Lynch

Faculty Scholarship

In the first portion of this study, we saw that the Supreme Court in its 1981 Turkette decision endorsed what was already the consensus view of the courts of appeals that a group of individuals associated in fact to pursue entirely illegitimate purposes could constitute a RICO enterprise. Prosecutions of such associations have quickly become the leading use of the statute. It can be reliably estimated that more than forty percent of the reported appellate cases involving RICO indictments concern prosecutions in which the alleged enterprise was such an illicit association. When the cases are classified by the nature of …

The Future Of Corporate Federalism: State Competition And The New Trend Toward De Facto Federal Minimum Standards, John C. Coffee Jr.

Faculty Scholarship

What sensible compromise can be struck between Bill Cary's and Ralph Winter's views of the competition among states for corporate charters? This is the relevant question to ask in response to Professor Romano's stimulating paper, because if one ends in an intermediate position between Cary and Winter (as she does and as I do), then one needs to focus on the protections shareholders should be accorded both to protect them from exploitation at the hands of a state pursuing tax revenues and from excessive regulation by a state whose regulatory efforts are intended in fact to realize ulterior objectives unrelated …

State-Local Relations And Constitutional Law, Richard Briffault

Faculty Scholarship

A persistent theme in the literature on state-local relations has been the plenary power of state governments and the legal powerlessness of local governments. The "black letter" rules of state-local relations are that the state governments enjoy complete hegemony over their political subdivisions, that local governments are mere "creatures" of the states, with only those powers that the states delegate to them, and there is no such thing as an "inherent right" of local self-government.

The Teaching Function Of The First Amendment, Vincent A. Blasi

Faculty Scholarship

In this important book, Professor Bollinger seeks to understand and remedy the inadequacy he perceives in the way our legal culture deals with extremist speech. He argues that the high level of protection the first amendment has been construed to require serves a social function that has not been fully recognized or carefully evaluated. His thesis is that the contemporary social function of the idea of freedom of speech is to help the society develop a general capacity for tolerance, a capacity that determines how we respond to many forms of conduct as well as speech. Once this function is …

Why Kant, George P. Fletcher

Faculty Scholarship

These essays are the outgrowth of a conference on Kantian Legal Theory held at the the Arden Homestead in Harriman, New York, September 26-28, 1986. Some of them are versions of papers originally presented at the conference (Weinrib, Murphy, Finnis, Fletcher); others are a response to the three days of provocative discussion (Richards, Grey, Benson). The underlying premise of the conference was that although philosophers and academic lawyers have devoted considerable attention to Kant's moral theory, very few have written much about Kant's legal theory. I should add: written in English. The recent German literature overflows with books and articles …

Constitutional Decisions And The Supreme Law, Kent Greenawalt

Faculty Scholarship

What status do Supreme Court decisions have for officials in the political branches of our government? Six months ago, Attorney General Edwin Meese III rekindled controversy over this enduring and troublesome question when he claimed in a widely reported lecture that Supreme Court decisions interpreting the Constitution are not the supreme law of the land, and are properly subject to forms of opposition by other governmental officials. The general reaction to the speech was that it was meant to reduce the perceived authority of Supreme Court opinions, and a close reading of the speech certainly leaves this impression. Yet, even …

Chernobyl Fallout: Recent Iaea Conventions Expand Transboundary Nuclear Pollution Law, Michael A. Heller

Faculty Scholarship

After releasing a radioactive cloud over Europe, the April 1986 nuclear power plant accident at Chernobyl in the USSR sparked a chain-reaction of diplomatic negotiation that culminated in two recent International Atomic Energy Agency (IAEA) conventions on nuclear accidents. The Convention on Early Notification of a Nuclear Accident (Convention on Early Notification) and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Convention on Assistance) were both opened for signature on September 26, 1986 at the end of a three-day IAEA special session on the lessons of the Soviet nuclear plant disaster. In the months …