Law Commons^™

Unifying Commercial Law In The New Century, Lance Liebman

Faculty Scholarship

I join enthusiastically in the applause for Fred Miller's service as Executive Director of the National Conference of Commissioners on Uniform State Laws (NCCUSL). Without question, Fred is the outstanding contemporary embodiment of the passion that led fifty years ago to the achievement of a uniform commercial law among the American states. His work serves a worthy cause, and the American Law Institute (ALI) is proud to have been a partner in the venture and to have played its appropriate instruments in the orchestra that Fred has been conducting.

That said, and Fred's integrity, intelligence, and steadfastness appropriately noted, it …

Law Enforcement Under Incomplete Law: Theory And Evidence From Financial Market Regulation, Chenggang Xu, Katharina Pistor

Faculty Scholarship

This paper studies the design of law-making and law enforcement institutions based on the premise that law is inherently incomplete. Under incomplete law, law enforcement by courts may suffer from deterrence failure, defined as the social-welfare loss that results from the regime's inability to deter harmful actions. As a potential remedy a regulatory regime is introduced. The major functional difference between courts and regulators is that courts enforce law reactively, that is only once others have initiated law enforcement procedures, while regulators enforce law proactively, i.e. on their own initiative. Proactive law enforcement may be superior in preventing harm. However, …

The First Decade: Critical Reflections, Or "A Foot In The Closing Door", Kimberlé W. Crenshaw

Faculty Scholarship

In the introduction to Critical Race Theory: The Key Writings That Formed the Movement, Gary Peller, Neil Gotanda, Kendall Thomas, and I framed the development of Critical Race Theory (CRT) as a dialectical engagement with liberal race discourse and with Critical Legal Studies (CLS). We described this engagement as constituting a distinctively progressive intervention within liberal race theory and a race intervention within CLS. As neat as this sounds, it took almost a decade for these interventions to be fleshed out fully. Reflecting on the past ten years of CRT, this Article explores the course of these interventions from the …

The Rise And Fall Of Article 2, Robert E. Scott

Faculty Scholarship

In August 13,2001 the National Conference of Commissioners on Uniform State Laws voted eighty-nine to fifty-three to reject the Amendments to Article 2 of the Uniform Commercial Code that had just been approved in May by the American Law Institute. The vote followed a last minute effort by the Article 2 drafting committee to amend the scope provisions of Article 2 in response to continuing criticism from representatives of the software and information industries. Several months later, at the request of the NCCUSL leadership, amended Article 2 with its revised scope provision was withdrawn from the agenda of the ALI …

Constructing The Practices Of Accountability And Professionalism: A Comment On In The Interests Of Justice, Susan Sturm

Faculty Scholarship

In the Interests of Justice: Reforming the Legal Profession lives up to its ambitious title. Deborah Rhode comprehensively surveys the structural problems confronting the legal profession, from its subscription to the "sporting theory of justice" to its preoccupation with profit. The book also lays bare the failure of legal education and the professional regulatory system to confront the roots of these structural problems.

I must confess that reading the book felt like a whirlwind tour of the legal profession's inevitable problems. In part, this perception grew out of the sheer range of economic, institutional, and structural factors contributing to the …

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention Court …

The Evolution Of Corporate Law: A Cross- Country Comparison, Katharina Pistor, Yoram Keinan, Jan Kleinheisterkamp, Mark D. West

Faculty Scholarship

The importance of law and legal institutions for economic development is widely acknowledged today. The invention of credit mechanisms to support long-distance trade has been hailed as one of the preconditions for the development of capitalism in Europe. The corporate form is regarded as another milestone for industrialization, the creation of viable market economies, and ultimately economic prosperity. Many former socialist countries quickly enacted new corporate codes or revived their pre-World War Two ("WWII") legislation. The failure of major privatization efforts to enhance enterprise efficiency is attributed to weaknesses in corporate governance, of which the corporate law is a crucial …

For My Friend, Philip Chase Bobbitt

Faculty Scholarship

Auden wrote somewhere that a friend is simply someone of whom, in his absence, one thinks with pleasure. How do we measure that against Dante’s famous observation that there is no greater pain than to remember happy days in days of sorrow? They are both right, are they not? I cannot think of my first memory of Charles without smiling even though all afternoon my throat has ached with the strain of suppressed anguish at the loss of him. “Memory is all that the death of such a man leaves us.”

Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt

Faculty Scholarship

The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.

"The Exclusive Right To Their Writings": Copyright And Control In The Digital Age, Jane C. Ginsburg

Faculty Scholarship

In this article, I will explore the concept of control and the meaning of exclusive rights in the constitutional text, the pre-1976 Copyright Act regime, and the 1976 Act. I then consider the new technology cases from piano rolls through videotaperecorders, as well as Congress' responses to new technological means of exploitation. I make two submissions. First, I conclude that when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement, even though the legal and economic analysis that support those determinations often …

Marital Commitment And The Legal Regulation Of Divorce, Elizabeth S. Scott

Faculty Scholarship

The question of the appropriate role of law in regulating marriage and divorce is the subject of much controversy in the United States – a raging battle of the “Culture Wars” (Hunter, 1991). On one side are social conservatives, who view divorce and family instability as an important source of societal decline. These advocates of “family values” adopt a somewhat punitive tone, arguing that the family can be saved only if the government restricts divorce, by reinstituting fault grounds and discouraging unhappy spouses from selfishly defecting from their responsibilities. Liberals tend to oppose all restrictions on divorce, partly on the …

Endowment Effects Within Corporate Agency Relationships, Jennifer H. Arlen, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

Behavioral economics is an increasingly prominent field within corporate law scholarship. A particularly noteworthy behavioral bias is the "endowment effect" – the observed differential between an individual's willingness to pay to obtain an entitlement and her willingness to accept to part with one. Should endowment effects pervade corporate contexts, they would significantly complicate much common wisdom within business law, such as the presumed optimality of ex ante agreements. Existing research, however, does not adequately address the extent to which people manifest endowment effects within agency relationships. This article presents an experimental test for endowment effects for subjects situated in an …

It's A Question Of Market Access, Kyle W. Bagwell, Robert W. Staiger, Petros C. Mavroidis

Faculty Scholarship

In this paper, we argue that market access issues associated with the question of the optimal mandate of the World Trade Organization should be separated from nonmarket access issues. We identify race-to-the-bottom and regulatory-chill concerns as market access issues and suggest that the WTIO should address these concerns. We then describe ways that WTO principles and procedures might be augmented to do so. As for nonmarket access issues, we argue that as a general matter these are best handled outside the WTO, and that, while implicit links might be encouraged, explicit links between the WTO and other labor and environmental …

The Preventive Effects Of Arrest On Intimate Partner Violence: Research, Policy And Theory, Christopher D. Maxwell, Joel H. Garner, Jeffrey A. Fagan

Faculty Scholarship

This research addresses the limitations of prior analyses and reviews of five experiments testing for the specific deterrent effect of arrest on intimate partner violence by applying to individual level data consistent eligibility criteria, common independent and outcome measures, and appropriate statistical tests. Based on 4,032 cases involving adult males who assaulted their female intimate partners, multivariate regression analyses show consistent but modest reductions in subsequent offenses targeting the original victim that is attributable to arresting the suspect. Although the reductions attributable to arrest are similar across all five studies, other factors, such as the suspect's prior arrest record, are …

The Future Of Reform: Campaign Finance After The Bipartisan Campaign Reform Act Of 2002, Richard Briffault

Faculty Scholarship

On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA" or "the Act") into law. The culmination of a protracted six-year legislative and political struggle, BCRA is the most significant change in federal campaign finance law since the early 1970s, when the Federal Election Campaign Act ("FECA") of 1971 and FECA Amendments of 1974 were adopted. The Act addresses a broad range of campaign finance issues, including fundraising on federal property, contributions by foreign nationals, donations to the presidential inauguration committee, electronic filing and Internet access to campaign disclosure reports, and penalties for …

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Faculty Scholarship

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses rules …

Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

The Quarterly's Fall 2001 issue published a Note reviewing our report, A Broken System: Error Rates in Capital Cases, 1973-1995. That Note has three inaccuracies that are so clear and frequently repeated, and are the result of such clear cite-checking lapses, that remedial steps are required. These matters do not involve differences of opinion, judgment, or interpretation between us and the Note's author. Matters of that sort are appropriately addressed in a response. All instead are misstatements of fact that result from the Quarterly's failure to fulfill its basic obligation to check the accuracy of verifiable factual statements it …

Vangrack's Explanations: Treating The Truth As A Mere Matter Of "Form", Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

We welcome criticism by responsible scholars and readers, and the chance to address it in journals that enforce appropriate standards of accuracy and integrity. We have done just that in exchanges in Judicature and the Indiana Law Journal.

But the inaccuracies in Adam VanGrack's Note, and new problems with his present explanation, lead us to conclude that it is not useful to exchange views with him in the Washington University Law Quarterly. Beyond all is Mr. VanGrack's dismissal of matters serious enough to trigger an extraordinary instruction to explain himself in print, and to prompt him to rescind …

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …

Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle Cooper Dreyfuss, Jane C. Ginsburg

Faculty Scholarship

The proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters is currently drafted to cover most fields of private litigation, including intellectual property. However, as those following the Hague process are aware, the Convention has run into considerable difficulties. There is currently reason to be concerned that it may not be promulgated at all, or that if it is promulgated, that it will be reduced in scope and cover only select areas of litigation, likely not to include intellectual property. This proposal is meant to spur the intellectual property bar to consider whether it would be …

100 Million Unnecessary Returns: A Fresh Start For The U.S. Tax System, Michael J. Graetz

Faculty Scholarship

We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments were concerned principally with positioning Democratic and Republican candidates for the 2002 congressional election, not tax policy.

But the coming decade, with its paint-by-numbers phase-ins and phaseouts of 2001 Act tax changes, the tax cuts waiting to spring into effect, and the sunset of the entire …

The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill

Faculty Scholarship

United States v. Mead Corp. is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine. According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action." Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."

Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards. He saw Mead as shifting the practice of deference away from the …

Something To Remember, Something To Celebrate: Women At Columbia Law School In, Barbara Aronstein Black

Faculty Scholarship

In this issue the Columbia Law Review joins in the celebration the 75th anniversary of the admission of women to the Columbia Law School. I am grateful to the editors of the Review for inviting me to contribute, and for the open-endedness of the invitation (or, in other words, what follows is my fault, not theirs). This has been an opportunity for me to do some research, some recalling and some reflection (and to tell a few stories). My research is incomplete, one might say sketchy, but I trust reliable as far as it goes. My recollections may well not …

From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg

Faculty Scholarship

This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in § 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if Congress …

The Birth, Death, And Rebirth Of The World Trade Center And The Fate Of New York, Michael B. Gerrard

Faculty Scholarship

The year in the title has finally arrived, and in Stanley Kubrick's classic film 2001: A Space Odyssey, the appearance of large monoliths marks important transitions in human civilization. In New York City, the construction, destruction and possible reconstruction of the twin monoliths of the World Trade Center also mark historical transitions. Among the things transformed with each event is our relationship to the physical environment.

The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon

Faculty Scholarship

Literalism is the doctrine that a facially accurate but knowingly deceptive statement does not violate prohibitions of falsehood and misrepresentation. This essay argues that Literalism has had greater legitimacy in professional responsibility than in other areas of law, but that it seems to be in terminal decline. It surveys the arguments for and against Literalism and concludes that its impending demise should be welcomed.

The Contested Right To Vote, Richard Briffault

Faculty Scholarship

For those who believe the United States is a representative democracy with a government elected by the people, the events of late 2000must have been more than a little disconcerting. In the election for our most important public office – our only truly national office – the candidate who received the most popular votes was declared the loser while his second place opponent, who had received some 540,000 fewer votes, was the winner. This result turned on the outcome in Florida, where approximately 150,000 ballots cast were found not to contain valid votes. Further, due to flaws in ballot design, …

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 arguments carry …

Bush V. Gore As An Equal Protection Case, Richard Briffault

Faculty Scholarship

In Bush v. Gore, the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote – that is, ballots that vote-counting machinery had found contained no indication of a vote for President – which the Florida Supreme Court had ordered to determine the winner of Florida's vote for presidential electors in the 2000 presidential election. The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court's …