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Columbia Law School

1989

Articles 1 - 30 of 35

Full-Text Articles in Law

The Mandatory Structure Of Corporate Law, Jeffrey N. Gordon Jan 1989

The Mandatory Structure Of Corporate Law, Jeffrey N. Gordon

Faculty Scholarship

It has become standard in the law and economics literature to refer to the corporation as a "nexus of contracts." On this view, the corporate entity is nothing more than a gathering point for a series of contracts, express and implied, among assorted actors: shareholders, bondholders, managers, employees, suppliers and customers, for example. This view rankles some sensibilities, because the economists' conception of a "contract" as an arrangement between two or more actors supported by reciprocal expectations and behavior is far broader than the lawyer's conception, which focuses on the existence of judicially cognizable duties and obligations. Thus the lawyer, …


Free Speech Justifications, Kent Greenawalt Jan 1989

Free Speech Justifications, Kent Greenawalt

Faculty Scholarship

This Article sets out what I believe are the relevant justifications for free speech, the term "free speech" being meant to cover both freedom of speech and freedom of the press. These are the justifications one might use to assess whether communications fall within a political or judicial principle of free speech and how great the protection of the communications that are covered should be. Such assessments are undertaken in a longer study that is mainly about the ways in which different uses of language affect the application of principles of freedom of speech to the criminalization of behavior. That …


Rethinking The Regulation Of Coercive Creditor Remedies, Robert E. Scott Jan 1989

Rethinking The Regulation Of Coercive Creditor Remedies, Robert E. Scott

Faculty Scholarship

The phenomenal growth of personal installment credit over the past forty years has generated inevitable pressures for regulatory reform of consumer credit markets. Much of the impetus for consumer protection has stemmed from the perceived abuses that mark the process of coercive collection upon default. Some of these abuses have been identified, quite properly, as the sort of deceptive or fraudulent practices often associated with industries experiencing rapid growth. But other creditor remedies, though troublesome to many observers, cannot be as easily characterized. For example, many critics have challenged the common practice of self-help repossession and resale of consumer goods …


The Mandatory/Enabling Balance In Corporate Law: An Essay On The Judicial Role, John C. Coffee Jr. Jan 1989

The Mandatory/Enabling Balance In Corporate Law: An Essay On The Judicial Role, John C. Coffee Jr.

Faculty Scholarship

A half-filled glass of water can be described as either half full or half empty. The structure of American corporate law – partly enabling, partly mandatory in character – can be viewed in much the same way. Some commentators see American corporate law as primarily composed of mandatory rules that the shareholders themselves cannot waive or modify, In their view, this mandatory component compensates both for the absence of true bargaining among the parties and for the inevitable divergence of interests between the principals (the shareholders) and their agents (the managers and directors). Conversely, other commentators, to whom this Article …


Delaware's Intermediate Standard For Defensive Tactics: Is There Substance To Proportionality Review?, Ronald J. Gilson, Reinier Kraakman Jan 1989

Delaware's Intermediate Standard For Defensive Tactics: Is There Substance To Proportionality Review?, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

The courts have long struggled with a standard for reviewing management's efforts to deter or defeat hostile takeovers. The usual standards of review in corporate law, the business judgment rule and the intrinsic fairness test, do not seem adequate when courts must evaluate defensive measures that implicate both management's business acumen and its loyalty to shareholder interests. Because evaluating a sale of the company is a complex business decision, management's response to a takeover bid resembles the normal business decisions that the business judgment rule largely insulates from judicial review.At the same time, however, a hostile takeover creates a potential …


The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger Jan 1989

The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger

Faculty Scholarship

The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically …


Covert Operations, Lori Fisler Damrosch Jan 1989

Covert Operations, Lori Fisler Damrosch

Faculty Scholarship

As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action – before the intelligence oversight reforms of the l 970s – Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to "perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct," Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an …


Facing Up: A Reply, Joseph Raz Jan 1989

Facing Up: A Reply, Joseph Raz

Faculty Scholarship

We are all familiar with the peculiar feeling of coming across one's past objectified, as when one overhears others telling how they perceived a certain event in which one played the hero's role. Reading the contributions to this issue was a bit like that. In particular, it made me realise how I have abused the tolerant paper by writing all too much, while leaving so many hostages to fortune, so many loose ends, and expressing so many half-baked ideas. It is also embarrassing because it is like a summons to the confessional, to repent my sins of omission and commission, …


Some Comments On Professor Neuborne's Paper, Henry Paul Monaghan Jan 1989

Some Comments On Professor Neuborne's Paper, Henry Paul Monaghan

Faculty Scholarship

It is a pleasure to have the opportunity to comment upon Professor Neuborne's paper; it is a provoking effort to make sense out of important aspects of the first amendment. At the outset, I should say that there is much in the paper with which I agree. But for the purposes of this essay I will focus on points of disagreement.

Professor Neuborne's specific focus is an analysis of the Security and Exchange Commission's (SEC) regulation of speech. The final twenty-one pages of his paper are directly concerned with analysis and criticism of the existing case law on the subject. …


Coming Of Age In A Corporate Law Firm: The Economics Of Associate Career Patterns, Ronald J. Gilson, Robert H. Mnookin Jan 1989

Coming Of Age In A Corporate Law Firm: The Economics Of Associate Career Patterns, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

The traditional American corporate law firm, long an oasis of organizational stability, in recent years has been the subject of dramatic change. The manner in which firms divide profits, perhaps the most revealing aspect of law firm organization because it displays the balance the firm has selected between risk-sharing and incentives, has changed in a critical way. From a long standing reliance on seniority that emphasizes risk-sharing, profit division is shifting to a system based on the productivity of individual partners that emphasizes incentives. With what seems to be only a short time lag from the change in how profits …


Corruption, Legal Education And Change In West Africa: A Broader View Of Human Rights, Suzanne B. Goldberg Jan 1989

Corruption, Legal Education And Change In West Africa: A Broader View Of Human Rights, Suzanne B. Goldberg

Faculty Scholarship

"Will we ever move again?" I wondered as I sat with my knees jammed into my chin, sore from the long and bumpy ride on the wooden plank which lined the back of a "bush taxi" – the only public transport between villages in Northern Mali. The "taxi" was actually a rusty and roadworn pickup truck packed with more than two dozen men, women and children, more than I ever imagined could fit in the small, flat space between the cab and the tailgate. "Why are we stopping now?" I smiled at myself as I felt a sense of exasperation …


On The Nature Of Bankruptcy: An Essay Of Bankruptcy Sharing And The Creditor's Bargain, Thomas H. Jackson, Robert E. Scott Jan 1989

On The Nature Of Bankruptcy: An Essay Of Bankruptcy Sharing And The Creditor's Bargain, Thomas H. Jackson, Robert E. Scott

Faculty Scholarship

Finance theorists have long recognized that bankruptcy is a key component in any general theory of the capital structure of business entities. Legal theorists have been similarly sensitive to the substantial allocational and distributional effects of the bankruptcy law. Nevertheless, until recently, underlying justifications for the bankruptcy process have not been widely studied. Bankruptcy scholars have been content to recite, without critical analysis, the two normative objectives of bankruptcy: rehabilitation of overburdened debtors and equality of treatment for creditors and other claimants.

The developing academic interest in legal theory has spurred a corresponding interest in expanding the theoretical foundations of …


Administrative Law Symposium: Question & Answer With Professors Elliott, Strauss, And Sunstein, Dick Pierce, Donald Elliott, Peter L. Strauss, Cass Sunstein Jan 1989

Administrative Law Symposium: Question & Answer With Professors Elliott, Strauss, And Sunstein, Dick Pierce, Donald Elliott, Peter L. Strauss, Cass Sunstein

Faculty Scholarship

No abstract provided.


Seasoned To The Use, Carol Sanger Jan 1989

Seasoned To The Use, Carol Sanger

Faculty Scholarship

Two recent novels, Presumed Innocent and The Good Mother, have more in common than critical success, longevity on best-seller lists and big-name movie adaptations. Both books are about law: Presumed Innocent is a tale of murder in the big city; The Good Mother is the story of a custody fight over a little girl. Central characters in both books are lawyers. Turow is a lawyer, and Miller thanks lawyers. While the books could be classified in other ways – Presumed Innocent as mystery, The Good Mother as women's fiction – each meets a suggested genre specification of a legal novel: …


Current Developments Concerning The Settlement Of Disputes Involving States By Arbitration And The World Court – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch Jan 1989

Current Developments Concerning The Settlement Of Disputes Involving States By Arbitration And The World Court – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Our moderator has asked me to talk about the dialogue between the United States and the Soviet Union. With respect to the general contours of the U.S. proposal, I think it is a very constructive one. I do support it, and I urge you all to study it, comment upon it, and try to improve it to take it a bit further. The main feature of it that I want to mention today is the idea of affirmative enumeration of categories of disputes that would be submitted to the Court for jurisdiction as opposed to the historical approach of accepting …


Politics Across Borders: Nonintervention And Nonforcible Influence Over Domestic Affairs, Lori Fisler Damrosch Jan 1989

Politics Across Borders: Nonintervention And Nonforcible Influence Over Domestic Affairs, Lori Fisler Damrosch

Faculty Scholarship

It is time for a fresh look at the norm of nonintervention in domestic affairs, as applied to nonforcible efforts to influence another state's internal politics. The existence of such a norm is widely proclaimed, and it is commonly assumed to be a legal obligation rather than a mere practice of comity or aspirational objective. For governments, scholars and international organs alike, the "rule" against interference in internal politics seems to be an article of faith; but despite the frequency of its incantation in international discourse, how the norm applies to nonforcible conduct is inadequately understood.

This article considers the …


Sharing The Risks Of Bankruptcy: Timbers, Ahlers, And Beyond, Robert E. Scott Jan 1989

Sharing The Risks Of Bankruptcy: Timbers, Ahlers, And Beyond, Robert E. Scott

Faculty Scholarship

Bankruptcy policy appears to be in disarray. Recent decisions by the United States Supreme Court have only served to reinforce the uncertainties that mar the bankruptcy process. In United Savings Association of Texas v. Timbers of Inwood Forest Associates, Ltd., the Court held that an undersecured creditor was not entitled to interest on its collateral as compensation for the opportunity costs of delay caused by the bankruptcy process. Timbers thus supports the argument that secured creditors should be forced to share the burdens of bankruptcy with other claimants. Conversely, in Norwest Bank Worthington v. Ahlers, the Court held …


The Single European Act: A Constitution For The Community?, George A. Bermann Jan 1989

The Single European Act: A Constitution For The Community?, George A. Bermann

Faculty Scholarship

If proof were needed that the European Economic Community is still the product of a careful tempering of integrationist impulses with preoccupations of national sovereignty, the recently ratified Single European Act (Single Act or Act) amply supplies it. Although the Single Act represents the most comprehensive revision to date of the Treaty of Rome (EEC Treaty), which established the European Economic Community (European Community or Community), it also reflects the continuing vitality of the view that functional change within the Community takes priority in time over structural and institutional reform. Rather than place European integration on a new set of …


Evaluating Child Care Legislation: Program Structures And Political Consequences, Lance Liebman Jan 1989

Evaluating Child Care Legislation: Program Structures And Political Consequences, Lance Liebman

Faculty Scholarship

The American political system is not good at choosing among worthy goals and then adopting programs well designed to achieve the desired purposes. Scholars and activists continue to debate the success and failure of the last quarter century of efforts to reduce inequality and achieve other social reforms. But we have no well developed methodology for evaluating proposed programs and attempting to predict their likely consequences.

This Article asks what we know about choosing legal structures for programmatic efforts that seek social change. In particular, it asks whether we can predict relationships between different ways of pursuing public ends and …


French Copyright Law: A Comparative Overview, Jane C. Ginsburg Jan 1989

French Copyright Law: A Comparative Overview, Jane C. Ginsburg

Faculty Scholarship

French copyright law has attracted considerable recent attention in the United States. Debate over the nature and scope of legislation permitting U.S. entry into the Berne Union for the Protection of Literary and Artistic Works spurred some of this interest: because France was a founding member of that Union, some participants in the Berne adherence process perceived "Berne level" copyright protection to be synonymous with "French" copyright protection. As Congress continues to consider modifications to the U.S. copyright law, particularly in the area of moral rights, France again supplies a leading example. And the on-going litigation in France concerning the …


The Future And The First Amendment, Lee C. Bollinger Jan 1989

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …


Harry Kalven, The Proust Of The First Amendment, Lee C. Bollinger Jan 1989

Harry Kalven, The Proust Of The First Amendment, Lee C. Bollinger

Faculty Scholarship

Reading A Worthy Tradition makes one nostalgic. For the generation of scholars who cut their first amendment teeth on Harry Kalven's articles, this book offers the experience of a recaptured past. The question is, however, does it offer anything more?


Retirement Security And Tax Policies: A Reply, Michael J. Graetz Jan 1989

Retirement Security And Tax Policies: A Reply, Michael J. Graetz

Faculty Scholarship

In an Article published in the April 1987 issue of the University of Pennsylvania Law Review, I urged that the three major components of this nation's retirement income system – Social Security, and income tax preferences for both employer-sponsored pension plans and individual retirement savings – be analyzed as a comprehensive national retirement income security program. I demonstrated that such an integrated view of this tripartite retirement security system reveals serious problems both with Social Security and with the generally applauded "tax expenditure" provisions for private pensions and individual savings. Viewing the three elements as a unified retirement security arrangement …


Reflections On Holding And Dictum, Kent Greenawalt Jan 1989

Reflections On Holding And Dictum, Kent Greenawalt

Faculty Scholarship

The aim of these reflections, which adopt the perspectives of ordinary judges and lawyers, is to try to help clarify what is uncontroversial about the distinction between holding and dictum, to explain what is troublesome about it, to provide – in fairly sketchy form – a way of understanding the authority of various legal formulations that do not fit indisputably or wholly comfortably in the category of holding or that of dictum, and to suggest a conceptual vocabulary for expressing the practical realities I consider.

In the autumn of 1986, I taught a course in Legal Method for beginning students …


A House Divided Against Itself: A Comment On "Mastery, Slavery, And Emancipation", Kendall Thomas Jan 1989

A House Divided Against Itself: A Comment On "Mastery, Slavery, And Emancipation", Kendall Thomas

Faculty Scholarship

Hegel argues in the preface to the Philosophy of Right that "every individual is a child of his time; so philosophy too is its own time apprehended in thoughts." "It is just as absurd," he maintains, "to fancy [the German word is einbilden: imagine, presume] that a philosophy can transcend its contemporary world as it is to fancy that an individual can overleap his own age, jump over Rhodes." This is a hard saying. It suggests that " '[t]here is not one of our ideas or one of our reflexions which does not carry a date.' " The fact that …


Manufacturing Matters: The Myth Of The Postindustrial Economy, Jagdish N. Bhagwati Jan 1989

Manufacturing Matters: The Myth Of The Postindustrial Economy, Jagdish N. Bhagwati

Faculty Scholarship

Messrs. Cohen and Zysman are political scientists. They are the resident gurus at BRIE (Berkeley Roundtable on International Economy). While they doubtless enjoy imported French cheese, especially with the Zinfandel from the local vineyards, they get the goose pimples watching movies on their Japanese VCRs. They are worried sick by America's alleged deindustrialization. This book is their effort to say why and to startle a complacement nation into an active policy to defend its industries.


Cessation Of Family Violence: Deterrence And Dissuasion, Jeffrey Fagan Jan 1989

Cessation Of Family Violence: Deterrence And Dissuasion, Jeffrey Fagan

Faculty Scholarship

Family violence research has only recently begun to investigate desistance. Recent developments in the study of behaviors other than family violence, such as the use of addictive substances, suggest that common processes can be identified in the cessation of disparate behaviors involving diverse populations and occurring in different settings. Desistance is the outcome of processes that begin with aversive experiences leading to a decision to stop. Desistance apparently follows legal sanctions in nearly three spouse abuse cases in four, but the duration of cessation is unknown beyond short study periods. Batterers with shorter, less severe histories have a higher probability …


Legislative Theory And The Rule Of Law: Some Comments On Rubin, Peter L. Strauss Jan 1989

Legislative Theory And The Rule Of Law: Some Comments On Rubin, Peter L. Strauss

Faculty Scholarship

Professor Rubin's article is an admirable piece of work on many levels, from its attention to jurisprudence to its concern with the practical changes in the Congress and its function, and their implications. In commenting on it, I mean to restrict myself to the latter subjects. These are the matters that have the closest tangency to my own work and produce for me the strongest response. Professor Rubin has given us a compelling statement of the problems posed for contemporary constitutional and legislative theory by one transformation in statutory practice accompanying the rise of the administrative state, the change from …


The Constitution's Accommodation Of Social Change, Philip A. Hamburger Jan 1989

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Faculty Scholarship

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law – text and interpretation – to accommodate such developments?


Unstable Coalitions: Corporate Governance As A Multi-Player Game, John C. Coffee Jr. Jan 1989

Unstable Coalitions: Corporate Governance As A Multi-Player Game, John C. Coffee Jr.

Faculty Scholarship

This is an article written in honor of Professor Donald Schwartz, a leading figure in academic corporate law for over two decades, but also a man nearly unique in his willingness to move beyond corporate law to the general study of corporate behavior. In this light, this article will not explore the latest wrinkle in the law – the most recent case, latest SEC ruling, or newest takeover defense tactic – but will instead ask if there are new ways in which we should try to talk about corporate law and corporate behavior. These were questions that Don Schwartz repeatedly …