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Full-Text Articles in Law

Private Law Statutory Interpretation, Shyamkrishna Balganesh Jan 2019

Private Law Statutory Interpretation, Shyamkrishna Balganesh

Faculty Scholarship

While scholars routinely question the normative significance of the distinction between public law and private law, few – if any – question its conceptual basis. Put in simple terms, private law refers to bodies of legal doctrine that govern the horizontal interaction between actors, be they individuals, corporate entities, or on occasion the state acting in its private capacity. Public law on the other hand refers to doctrinal areas that deal with vertical interaction between the state and non-state actors, wherein the state exerts a direct and overbearing influence on the shape and course of the law. The latter is epitomized by ...


Strategic Law Avoidance Using The Internet: A Short History, Tim Wu Jan 2017

Strategic Law Avoidance Using The Internet: A Short History, Tim Wu

Faculty Scholarship

We are now some twenty years into the story of the Internet's bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry's excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strategies more recently employed to avoid law using the Internet in some way. While Pollman and Barry's article stands on its ...


Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern Jan 2014

Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern

Faculty Scholarship

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic ...


Charles H. Whitebread, Michael J. Graetz Jan 2009

Charles H. Whitebread, Michael J. Graetz

Faculty Scholarship

Late in April when Charlie Whitebread learned that he had Stage 4 lung cancer, it occurred to me that I might someday be asked to say a few words about him. But these are comments I hoped never to make. I do not have words to describe to you the emptiness in my life that Charlie had filled for so many years. But our purpose here is not to mourn our loss; rather it is to celebrate Charlie's life.


Equality Without Tiers, Suzanne B. Goldberg Jan 2004

Equality Without Tiers, Suzanne B. Goldberg

Faculty Scholarship

The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court's most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.

Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under ...


On The Demise Of Shareholder Primacy ( Or, Murder On The James Trains Express), Eric Talley Jan 2002

On The Demise Of Shareholder Primacy ( Or, Murder On The James Trains Express), Eric Talley

Faculty Scholarship

The hypothetical introduced by Vice Chancellor Leo Strine's Essay exposes an important arena of corporate governance where adherence to the traditional norm of "shareholder primacy" is particularly troublesome. In fact, it is hard to find an analogous domain of corporate governance law that is as jarringly discontinuous as that found in the factual circumstances suggested by Strine's hypothetical. Explicitly, the legal scrutiny accorded to managers who resist a hostile acquisition depends critically on whether a court invokes the Revlon doctrine or the Unocal doctrine as the appropriate governing standard. Under the former (and its progeny), shareholder primacy ...


Playing Favorites With Shareholders, Stephen J. Choi, Eric Talley Jan 2002

Playing Favorites With Shareholders, Stephen J. Choi, Eric Talley

Faculty Scholarship

One of the most vexing historical debates in corporate law concerns whether regulations or markets are better equipped to address managerial agency costs within public corporations. Although corporate law scholars have traditionally favored immutable legal imperatives as an elixir for misaligned incentives,an increasing number of commentators place greater faith in market mechanisms to accomplish the same task. While many such mechanisms operate simultaneously (including markets for output, labor, and capital), perhaps none has received more attention than the oft-celebrated "market for corporate control" as a means for achieving deterrence. By providing a constant and credible risk of hostile acquisitions ...


Sticks And Snakes: Derivatives And Curtailing Aggressive Tax Planning, David M. Schizer Jan 2000

Sticks And Snakes: Derivatives And Curtailing Aggressive Tax Planning, David M. Schizer

Faculty Scholarship

The most important tax problem of recent months is the impact of aggressive tax planning on corporate tax revenue. The Secretary of the Treasury blames the "tax shelter industry," in which tax lawyers and investment bankers develop and market tax-motivated transactions. This Article analyzes aggressive tax planning, and recommends ways to impede it, in a context rife with opportunities for planning: the tax rules for complex financial instruments known as derivatives. While planning opportunities are prevalent elsewhere in the tax law as well, this Article focuses on derivatives because the problem is particularly acute – indeed, derivatives have been called "[tlhe ...


Precedential Cascades: An Appraisal, Eric Talley Jan 1999

Precedential Cascades: An Appraisal, Eric Talley

Faculty Scholarship

About a half century ago, a handful of social scientists began to formalize what was to become the analytical heart of neoclassical economics. Under the broad rubric of "general equilibrium theory," these scholars demonstrated (in varying degrees of mathematical sophistication) the longstanding intuition behind the so-called "invisible hand": that is, that competitive markets could convert apparent disarray and fragmentation into order and harmony. More explicitly, general equilibrium theory demonstrated how a decentralized collection of self-interested individuals could, through competitive market transactions, allocate scarce goods and services in a socially efficient manner. An equally powerful corollary attended this central insight: that ...


He's Gotta Have It, Carol Sanger Jan 1993

He's Gotta Have It, Carol Sanger

Faculty Scholarship

In 1929, James Thurber and E.B. White observed that

[d]uring the past year, two factors in our civilization have been greatly overemphasized. One is aviation. The other is sex.... In the case of aviation, persons interested in the sport saw that the problem was to simplify it and make it seem safe.... With sex, the opposite was true.... The problem in this case was to make sex seem more complex and dangerous. This task was taken up by sociologists, analysts, gynecologists, psychologists, and authors.... They joined forces and made the whole matter of sex complicated beyond [our wildest ...


The Reasonable Women And The Ordinary Man, Carol Sanger Jan 1992

The Reasonable Women And The Ordinary Man, Carol Sanger

Faculty Scholarship

Nineteen ninety-one was a seismic year for sexual harassment. The first localized shift occurred in January, when the Ninth Circuit established that the standard by which sexual harassment in the workplace would be judged was no longer the reasonable man or even the reasonable person but rather the reasonable woman. In October a larger audience felt a much stronger jolt when Anita Hill spoke before the Senate Judiciary Committee.

Hill testified that Supreme Court nominee Clarence Thomas had sexually harassed her while she worked for him at the Department of Education and at the Equal Employment Opportunity Commission. Her testimony ...


Rouge Et Noir Reread: A Popular Constitutional History Of The Angelo Herndon Case, Kendall Thomas Jan 1992

Rouge Et Noir Reread: A Popular Constitutional History Of The Angelo Herndon Case, Kendall Thomas

Faculty Scholarship

In 1932, Eugene Angelo Braxton Hemdon, a young Afro-American member of the Communist Party, U.S.A., was arrested in Atlanta and charged with an attempt to incite insurrection against that state's lawful authority. Some five years later, in Herndon v. Lowry, Herndon filed a writ of habeas corpus asking the U.S. Supreme Court to consider the constitutionality of the Georgia statute under which he had been convicted. Two weeks before his twenty-fourth birthday, the Court, voting 5-4, declared the use of the Georgia political-crimes statute against him unconstitutional on the grounds that it deprived Herndon of his ...


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 ...


Error And Rationality In Individual Decisionmaking: An Essay On The Relationship Between Cognitive Illusion And The Management Of Choice, Robert E. Scott Jan 1986

Error And Rationality In Individual Decisionmaking: An Essay On The Relationship Between Cognitive Illusion And The Management Of Choice, Robert E. Scott

Faculty Scholarship

How do individuals make choices? In recent years, economists, psychologists and legal academics have searched for answers to various aspects of this question. One topic of recent interest, for example, concerns a lingering problem in information theory: Does consumer inability to process "too much" information cause market failure? The normative implications of this question raise significant policy issues. If consumers' cognitive circuits can become overloaded, then information disclosure is less appealing than direct regulation as a solution to problems of market failure.


An Economic Analysis Of The Lost-Volume Retail Seller, Victor P. Goldberg Jan 1984

An Economic Analysis Of The Lost-Volume Retail Seller, Victor P. Goldberg

Faculty Scholarship

Suppose that a customer agrees to buy a boat and before it is delivered, he reneges. The dealer subsequently resells the boat to another customer at the same price. Has the seller suffered damages (aside from incidental damages) and, if so, should he be compensated? This question, dubbed the lost-volume seller problem, has been the subject of considerable legal analysis, usually in the context of explicating section 2-708(2) of the Uniform Commercial Code (U.C.C.). There have been a number of attempts to apply economic analysis to this difficult question, the most recent by Professors Goetz and Scott ...


The 1982 Minimum Tax Amendments As A First Step In The Transition To A "Flat-Rate" Tax, Michael J. Graetz Jan 1983

The 1982 Minimum Tax Amendments As A First Step In The Transition To A "Flat-Rate" Tax, Michael J. Graetz

Faculty Scholarship

The massive body of tax legislation enacted in the first two years of the Reagan Administration offers little guidance for predicting the future direction of United States tax policy. Dramatically different Congressional coalitions – each led by the President – passed by very narrow margins the nation's largest tax reduction (the Economic Recovery Tax Act of 1981) and then the next year enacted the largest peacetime tax increase (the Tax Equity and Fiscal Responsibility Act of 1982). In each case, short-term political and fiscal concerns dominated the debates. The 1981 legislation reduced taxes in an effort to stimulate economic activity and ...


The Individualization Of Excusing Conditions, George P. Fletcher Jan 1974

The Individualization Of Excusing Conditions, George P. Fletcher

Faculty Scholarship

The excusing conditions of the criminal law are variations of the theme "I couldn't help myself' or "I didn't mean to do it." In this respect the defenses known as necessity, duress, insanity and mistake of law are but extensions of homely, routine apologies for causing harm and violating the rules of social and family life. While we use the plea "I couldn't help myself" to cover the full range of excusing circumstances, each of the formal excuses of the criminal law has a limited sphere. As a general matter, these spheres are dictated by the type ...