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Articles 1 - 30 of 94
Full-Text Articles in Law
Thinking About Feminism, Social Justice, And The Place Of Feminist Law Journals: A Letter To The Editor, Suzanne B. Goldberg
Thinking About Feminism, Social Justice, And The Place Of Feminist Law Journals: A Letter To The Editor, Suzanne B. Goldberg
Faculty Scholarship
Dear Editors:
You, like the editors who came before you, have staked a place in an invigorating and challenging conversation about the transformative potential of feminist approaches to social justice.1 As you envision and edit your journal, fundamental questions about the purpose of feminist scholarship and the value of retaining an autonomous space for feminist jurisprudence loom large.
Not surprisingly, The Bluebook will provide little guidance on these topics. Instead, consistent with the feminist enterprise,2 you will need to search out sources, both within and outside of the law school library, to spark your critical thinking. Ideally these will ensure …
About Morality And The Nature Of Law, Joseph Raz
About Morality And The Nature Of Law, Joseph Raz
Faculty Scholarship
In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.
Reflections On The Life And Work Of Justice Byron R. White, Lance Liebman
Reflections On The Life And Work Of Justice Byron R. White, Lance Liebman
Faculty Scholarship
I am honored to be at this distinguished law school. Lee Irish and I were law clerks for Justice White the same year, at a time when a Justice only had two law clerks. Those were the days when the people older than us, who had been clerks when there was only one clerk in each office, would say, "You don't have the same experience, because the Justice is dealing with two of you so it is not as intense." Of course, now with as many as four clerks in each office, it is different still.
Lee and I had …
Revising The Model Penal Code: Keeping It Real, Gerard E. Lynch
Revising The Model Penal Code: Keeping It Real, Gerard E. Lynch
Faculty Scholarship
The thesis of this talk can be simply stated: In any serious discussion of revising the Model Penal Code (MPC), the object of the game cannot be revising the MPC itself. Rather, the object of any revision of the Code is to promote the reform of the nation's actual criminal codes, as adopted by the state legislatures and Congress.
Policy Recommendations For Dispute Prevention And Dispute Settlement In Transatlantic Relations: Legal Perspectives, George A. Bermann
Policy Recommendations For Dispute Prevention And Dispute Settlement In Transatlantic Relations: Legal Perspectives, George A. Bermann
Faculty Scholarship
The concrete case studies and general policy analyses that were the subject of inquiry in the conferences culminating in the present volume have predictably generated a series of distinctly legal – as well as political – reflections on dispute prevention and dispute settlement in the transatlantic arena. One of the merits of the dual (concrete and abstract) approach that has been adopted for these conferences is its capacity to provide a check against the risks that would result either from divorcing this study from the realities of disputes or from relying exclusively on potentially idiosyncratic dispute scenarios. The recommendations to …
Unregulable Defenses And The Perils Of Shareholder Choice, Jennifer Arlen, Eric L. Talley
Unregulable Defenses And The Perils Of Shareholder Choice, Jennifer Arlen, Eric L. Talley
Faculty Scholarship
A significant debate rages within corporate law scholarship as to whether shareholders or managers should be granted authority over the tender offer process once a bid is imminent. Both sides generally agree that the issue depends on whether shareholders are capable of exercising informed choice over takeover bids. Supporters of managerial veto power contend that the arguments favoring professional management of publicly held firms carry over into the tender offer context. Proponents of shareholder choice, on the other hand, argue that shareholders can act on their own behalf in the special circumstances surrounding contests for corporate control.
This Article challenges …
Engineering A Venture Capital Market: Lessons From The American Experience, Ronald J. Gilson
Engineering A Venture Capital Market: Lessons From The American Experience, Ronald J. Gilson
Faculty Scholarship
The venture capital market and firms whose creation and early stages were financed by venture capital are among the crown jewels of the American economy. Beyond representing an important engine of macroeconomic growth and job creation, these firms have been a major force in commercializing cutting-edge science, whether through their impact on existing industries as with the radical changes in pharmaceuticals catalyzed by venture-backed firms' commercialization of biotechnology, or by their role in developing entirely new industries as with the emergence of the Internet and World Wide Web. The venture capital market thus provides a unique link between finance and …
Incomplete Law, Katharina Pistor, Chenggang Xu
Incomplete Law, Katharina Pistor, Chenggang Xu
Faculty Scholarship
This Article develops a framework for analyzing the relation between basic features of statutory and case law and the design and functioning of institutions that enforce this law. The basic premise is that law is inherently incomplete and that this has important implications for law enforcement. In particular, when law is incomplete, special emphasis needs to be placed on the allocation of lawmaking and law enforcement powers (LMLEP) to different institutions such as legislatures, courts, or regulators, in order to attain optimal levels of law enforcement. Using the development of the legal framework governing financial markets as an example to …
A Theory Of Self-Enforcing Indefinite Agreements, Robert E. Scott
A Theory Of Self-Enforcing Indefinite Agreements, Robert E. Scott
Faculty Scholarship
One of the core principles of contract law is the requirement of definiteness. Conventional wisdom holds, however, that the indefiniteness doctrine is largely ignored by courts. In this Article, Professor Scott examines the contemporary case law on indefinite contracts and his review yields three striking findings. First, there is a surprisingly high volume of litigation. Second, the indefiniteness doctrine lives on in the common law of contracts. Third, a large number of the indefiniteness cases involve contracts that are "deliberately" incomplete – that is, parties have declined to condition performance on available, verifiable measures that could be specified in the …
From Violent Crime To Terrorism: The Changing Basis Of The Federal, State And Local Law Enforcement Dynamic, Daniel C. Richman
From Violent Crime To Terrorism: The Changing Basis Of The Federal, State And Local Law Enforcement Dynamic, Daniel C. Richman
Faculty Scholarship
Two lines of questions dominate discussions about how the nation ought to respond at home to the new (or rather newly perceived) terrorist threat: How do we ensure that information about potential terrorist activities is effectively gathered, shared, and used? And how do we ensure that the Government neither abuses the investigative authority we give it, nor demands more authority than it needs? Each line can profitably be pursued in its own terms. Yet to keep the conversations separate is to miss seeing how the very process of creating an effective domestic intelligence network may introduce a salutary level of …
The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley B. Lubman
The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley B. Lubman
Hong Yen Chang Center for Chinese Legal Studies
I am pleased to write in honor of Bill Jones by reflecting here on the study of Chinese law, which has occupied us both since the early 1960s and has since grown far beyond its narrow scope at that time. In the pages that follow, I first survey the development and current state of the field by reviewing American scholarship on some major areas of Chinese law from those early days up to the present. I am also pleased to use this review as a vehicle for noting, in particular, some of Bill's contributions to our inquiries. Some related activities …
Professional Identity: Comment On Simon, Daniel C. Richman
Professional Identity: Comment On Simon, Daniel C. Richman
Faculty Scholarship
Lord Brougham – the icon of zealous advocacy, who saw it as his duty to “save [his royal] client by all means and expedients and at all hazards and costs to other persons and, among them, to himself” – would not last long in a Cuban criminal court today. The question is, how comfortable would he be in a drug treatment court? Could he do his job? How well would he do it? Would he want to? And should we care if he couldn't and wouldn't?
These are all questions raised by William Simon's trenchant exploration of the challenges that …
Gender, Work, And The Nafta Labor Side Agreement, Kate Andrias
Gender, Work, And The Nafta Labor Side Agreement, Kate Andrias
Faculty Scholarship
It has been nearly ten years since the public debate over the North American Free Trade Agreement ("NAFTA") and the advent of trade liberalization with America's neighbors to the north and south. In the years since NAFTA's signing in 1993, economic globalization has fundamentally changed our conception of the nation-state, citizenship, trade, and work. Economic life in the United States now involves massive cross-border capital and labor flows, and integrated cross-border production chains, particularly with our trading partners in NAFTA. We have seen greater trade liberalization throughout the world, the ascendance of transnational organizations like the World Trade Organization, recurrent …
Law And Judicial Duty, Philip A. Hamburger
Law And Judicial Duty, Philip A. Hamburger
Faculty Scholarship
Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."
He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …
Governance Failures Of The Enron Board And The New Information Order Of Sarbanes-Oxley, Jeffrey N. Gordon
Governance Failures Of The Enron Board And The New Information Order Of Sarbanes-Oxley, Jeffrey N. Gordon
Faculty Scholarship
Analysis of the corporate governance crisis that manifested itself in the United States at the turn of the millennium requires separating its various strands. The Enron Corporation ("Enron") debacle and the dot corn bubble and collapse, for example, share some common elements but in other ways they are quite different. In both cases investors became aggressively enamored of an unsustainable business model. In the dot com case it was the belief that an innovator in a rapidly growing market could attain powerful first mover advantages that would produce an eventual cascade of profits, so that a current and increasing stream …
Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, Gerard E. Lynch
Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, Gerard E. Lynch
Faculty Scholarship
I was delighted to be invited to comment on Ronald Wright and Marc Miller's important and instructive article, The Screening/Bargaining Tradeoff. Those familiar with the authors' work, including their original and fascinating criminal procedure casebook, will be unsurprised by many of the article's virtues, including a focus on empirical examination of real-world practice and (perhaps a special case of that more general virtue) attention to practices at the state and local level, where most criminal law enforcement actually occurs. Wright and Miller develop some interesting insights into the potential for changes in plea bargaining practices that have frequently been …
Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon
Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon
Faculty Scholarship
The Community Justice idea and its core institution – the Community Court – is an ambitious innovation intended to generate new solutions and practices. It thus inevitably calls for adaptation of the established roles associated with the court system, and especially the criminal justice system. It asks practitioners to learn new skills, to accept new conventions, and to participate in the elaboration of a rapidly evolving experiment.
It is thus not surprising that many lawyers are anxious about the system. It remains an interesting question, however, whether their anxiety represents something more than the discomfort that change and challenge typically …
Bi-Polar And Polycentric Approaches To Human Rights And The Environment, Michael Burger
Bi-Polar And Polycentric Approaches To Human Rights And The Environment, Michael Burger
Sabin Center for Climate Change Law
Within the well-established human rights system, there exist at least three ways to promote environmental ends (each of which is discussed further in Section III below): (1) mobilizing existing rights to achieve environmental ends; (2) reinterpreting existing rights to include environmental concerns; and (3) creating new rights, such as the right to a clean environment. To justify engaging in any one of these processes, an advocate must recognize both their moral legitimacy and legal utility. As one author has argued, "the justification for rights is to be found in the way in which they enable us to address a key …
Assessing Theories Of Global Governance: A Case Study Of International Antitrust Regulation, Anu Bradford
Assessing Theories Of Global Governance: A Case Study Of International Antitrust Regulation, Anu Bradford
Faculty Scholarship
An effective, legitimate model of global governance must strike a delicate balance between national sovereignty and international cooperation. As such, governance on an international level is a constantly evolving discourse among multiple actors whose respective roles and influence vary across time and policy realms. The participation of multiple actors in global governance is widely recognized, but there is considerable disagreement as to the appropriate distribution of power among these participants and the optimal pattern for their interaction. We may never be able to construct an ideal global governance model. But the attempt to create such a model by examining the …
Law, Share Price Accuracy And Economic Performance: The New Evidence, Merritt B. Fox, Randall Morck, Bernard Yeung, Artyom Durnev
Law, Share Price Accuracy And Economic Performance: The New Evidence, Merritt B. Fox, Randall Morck, Bernard Yeung, Artyom Durnev
Faculty Scholarship
Mandatory disclosure has been at the core of U.S. securities regulation since its adoption in the early 1930s. For many decades, this fixture of our financial system was accepted with little examination. Over the last twenty years, however, mandatory disclosure has been subject to intensifying intellectual crosscurrents. Some commentators hold out the U.S. system as the standard for the world. They argue that adoption by other countries of a U.S.-styled system, with its greater corporate transparency, would enhance their economic performance. Other commentators, in contrast, insist that the U.S. mandatory disclosure regime represents a mistake, not a model. These crosscurrents …
An Appreciation Of Jonathan I. Charney, Lori Fisler Damrosch
An Appreciation Of Jonathan I. Charney, Lori Fisler Damrosch
Faculty Scholarship
Jon Charney preceded me into the academic world by a dozen years and already had a well-established reputation in international law when I was a brand-new law teacher. At the time we met in 1984, Jon was tackling some of the most ambitious topics in the theory and practice of international law, and he reached out to others for collegial engagement on those subjects. From the mid-1980s, he and I worked together on three collaborative books and on many projects for the American Society of International Law and the American Journal of International Law.
A Comment On Grutter And Gratz V. Bollinger, Lee C. Bollinger
A Comment On Grutter And Gratz V. Bollinger, Lee C. Bollinger
Faculty Scholarship
Now that the Supreme Court has definitively resolved (at least for a generation) the issue of the constitutionality of affirmative action in American higher education, thereby continuing without major adjustment what has been the practice in our selective colleges and universities for more or less the last thirty years, it is easy to forget how different the United States would have looked in the years ahead if only one vote had shifted to the dissenting side. Just how precipitous and long-lasting the decline in racial and ethnic diversity would have been is a complicated matter, but that it would have …
The Attorney As Gatekeeper: An Agenda For The Sec, John C. Coffee Jr.
The Attorney As Gatekeeper: An Agenda For The Sec, John C. Coffee Jr.
Faculty Scholarship
Section 307 of the Sarbanes-Oxley Act authorizes the SEC to prescribe "minimum standards of professional conduct" for attorneys "appearing or practicing" before it. Although the initial debate has focused on issues of confidentiality, this terse statutory provision frames and seemingly federalizes a much larger question: What is the role of the corporate attorney in public securities transactions? Is the attorney's role that of (a) an advocate, (b) a transaction cost engineer, or, more broadly, (c) a gatekeeper – that is, a reputational intermediary with some responsibility to monitor the accuracy of corporate disclosures? Skeptics of any gatekeeper role for attorneys …
Consensual Sex And The Limits Of Harassment Law, Carol Sanger
Consensual Sex And The Limits Of Harassment Law, Carol Sanger
Faculty Scholarship
This chapter discusses an enormous achievement of the campaign against the harassment of working women, which is the establishment of a set of facts about sex at work that had previously been denied, mocked, and misunderstood. It is now understood that sex can be unwelcome, that unwelcome overtures are neither harmless nor fun, and that consent to sex demanded on the job does not shift the behavior from the category of unwanted sex to the category of the welcome. On the other hand, one of the most ferocious complaints against the establishment of sexual harassment as a legal wrong is …
Towards A New Scholarship For Equal Justice, James S. Liebman
Towards A New Scholarship For Equal Justice, James S. Liebman
Faculty Scholarship
Over the last thirty years, the legal academy has turned a cold shoulder to the subject matter of this symposium: scholarship for equal justice. I am here to suggest that a thaw may be on the way. By scholarship for equal justice – as distinguished from scholarship about that topic – I mean academic work undertaken for the purpose of improving outcomes for individuals and members of groups who have been systematically held back by their race, sex, poverty, or any other basis for rationing success that our legal system treats with suspicion. With reference to some of my own …
For Eugene Rostow, Philip Chase Bobbitt
For Eugene Rostow, Philip Chase Bobbitt
Faculty Scholarship
The two-handed saw is a foresters’ instrument that two men use, one at each end, sawing in reciprocating rhythm. The blade of the best two-handed saws balances a sharpened stiffness with a shimmering flexion; its use requires individual strength and skill at cooperation. Because Gene Rostow too combined these opposing qualities – indeed had them in abundance – it is especially noteworthy that one day, using such a saw as a young man in New England, he severely injured his back, keeping him out of active service in World War II and causing recurrent difficulties throughout his gallant life.
Was …
Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson
Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson
Faculty Scholarship
With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …
Robust Public Debate: Realizing Free Speech In Workplace Representation Elections, Kate Andrias
Robust Public Debate: Realizing Free Speech In Workplace Representation Elections, Kate Andrias
Faculty Scholarship
The First Amendment stands as a guarantor of political freedom and as the “guardian of our democracy.” It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As the Supreme Court wrote in the canonical case of New York Times Co. v . Sullivan, the First Amendment’s function is to create the “uninhibited, robust and wide-open” public debate necessary for the exercise of self-governance.
The Amendment plays a prominent role in the regulation of workplace representation elections, the process …
Local Institutions, Foreign Investment And Alternative Strategies Of Development: Some Views From Practice, Tamara Lothian, Katharina Pistor
Local Institutions, Foreign Investment And Alternative Strategies Of Development: Some Views From Practice, Tamara Lothian, Katharina Pistor
Faculty Scholarship
This Essay summarizes the major insights gained from a panel discussion with legal practitioners about the relevance of local institutions to foreign direct investors. The Essay offers a critique of policy conclusions drawn from empirical studies that suggest a positive correlation between legal institutions and foreign investment flows. It points out that the data used in these studies are far too general to allow policy conclusions and that neither the data nor the policy conclusions are sufficiently attuned to the challenges or opportunities that foreign direct investment projects face on the ground. According to the results of the panel discussion, …
Placing The Adoptive Self, Carol Sanger
Placing The Adoptive Self, Carol Sanger
Faculty Scholarship
[A]doption law and practices are guided by enormous cultural changes in the composition and the meaning of family. As families become increasingly blended outside the context of adoption – with combinations of blood relatives, step-relatives, de facto relatives, and ex-relatives sitting down together for Thanksgiving dinner as a matter of course – birth families and adoptive families knowing one another may not seem so very strange or threatening at all. There will simply be an expectation across communities that ordinary families will be mixed and multiple. With that in mind, we should hesitate before establishing embeddedness as the source of …