Law Commons^™

The Relevance Of Coherence, Joseph Raz

Faculty Scholarship

Coherence is in vogue. Coherence accounts of truth and of knowledge have been in contention for many years. Coherence explanations of morality and of law are a newer breed. I suspect that like so much else in practical philosophy today they owe much of their popularity to John Rawls. His writings on reflective equilibrium, while designed as part of a philosophical strategy which suspends inquiry into the fundamental questions of moral philosophy, had the opposite effect. They inspired much constructive reflection about these questions, largely veering toward coherence as the right interpretation both of reflective equilibrium and of moral philosophy. …

The Political Ecology Of Takeovers: Thoughts On Harmonizing The European Corporate Governance Environment, Ronald J. Gilson

Faculty Scholarship

Economic policy debate in the United States during the 1980s focused on the dynamics of bidder and target tactics in hostile takeovers. Confronted with the largest transactions in business history, financial economists took advantage of developments in econometric techniques to conduct virtually real time studies of the impact on firm value of each new bidder tactic and target defense. For courts and lawyers, hostile takeovers subjected standard features of corporate law to the equivalent of a stress x-ray, revealing previously undetected doctrinal cracks. Congress held seemingly endless hearings on the subject, although managing to enact only relatively innocuous tax penalties …

Judgment And Reasoning In Adolescent Decisionmaking, Elizabeth S. Scott

Faculty Scholarship

Few people believe that five year olds and fifteen year olds think, act or make decisions in the same way. The question is whether and how the law should respond to developmental differences. Traditionally, childhood and adulthood have been two dichotomous legal categories, demarcated by the age of majority. This conception has been contested in recent years, as has the premise that all minors are incompetent to make decisions and function as legal actors. Fueled by the controversy over adolescent access to abortion, an advocacy movement has emerged that challenges the authority of parents and the state over the lives …

Pluralism, Paternal Preference, And Child Custody, Elizabeth S. Scott

Faculty Scholarship

Modern child custody law faces an important challenge in responding to pluralistic and evolving gender and parenting roles. Professor Scott finds rules favoring maternal custody, joint custody, and the best interests of the child wanting; she argues that the optimal response to the current pluralism in family structure is a rule that seeks to replicate past parental roles. This "approximation" standard promotes continuity and stability for children. It encourages cooperative rather than conflictual resolution of custody, thereby ameliorating the destructive effects of bargaining at divorce. It also recognizes and reinforces role change in individual families, encouraging both parents to invest …

The Constitutional Principle Of Separation Of Powers, Thomas W. Merrill

Faculty Scholarship

The Supreme Court has had many occasions in recent years to consider what it calls "the constitutional principle of separation of powers." The principle in question has been effusively praised and on occasion vigorously enforced. But just what is it? The Court clearly believes that the Constitution contains an organizing principle that is more than the sum of the specific clauses that govern relations among the branches. Yet notwithstanding the many testimonials to the importance of the principle, its content remains remarkably elusive.

The central problem, as many have observed, is that the Court has employed two very different conceptions …

The Rulemaking Continuum, Peter L. Strauss

Faculty Scholarship

The two papers we have before us tell both descriptive and normative stories about current issues of rulemaking. Each suggests, in its field of attention, pressures that operate to increase proceduralization and agency responses to those pressures, as well as an attitude toward these developments. In rulemaking, as in other activities, discretion and order are in constant tension; one might find in that tension the very engine that makes the processes of public law go. Like the studies that assisted the move away from formal rulemaking, and the perceptions underlying the Supreme Court's Vermont Yankee decision, which quieted the judicial …

Benign Restraint: The Sec's Regulation Of Execution Systems, David M. Schizer

Faculty Scholarship

To the handful of traders who founded the New York Stock Exchange (NYSE) in 1792 – and perhaps even to the securities traders of the 1960's – today's securities markets would be virtually unrecognizable. New communications and data processing technologies, the globalization of investment portfolios, and a surge in trading volume have created new needs and possibilities. As a result, revolutionary advances have occurred in the design and performance of execution systems: the technologies (computers, telephones, modems) and formats (auction-based stock exchanges, dealer-based "over-the-counter" markets, computerized single price auctions) that traders use to conduct trades. These advances enable trades on …

No "Sweat"? Copyright And Other Protection Of Works Of Information After Feist V. Rural Telephone, Jane C. Ginsburg

Faculty Scholarship

The Supreme Court's unanimous decision last Term in Feist Publications, Inc. v. Rural Telephone Service Co. proscribed copyright protection for works of information that fail to manifest a modicum of creative originality in selection or arrangement. Discarding a long – if lately uneasy – tradition of U.S. copyright coverage of informational works that display far greater industriousness than imagination, the Court ruled that copyright does not secure the "sweat of the brow" or the investment of resources in the compilation of a work of information. The Court thus stripped away or sharply reduced the copyright protection afforded a variety …

The End Of New York Times V Sullivan: Reflections On Masson V New Yorker Magazine, Lee C. Bollinger

Faculty Scholarship

Virtually every year since New York Times v Sullivan, the Supreme Court has decided at least one or two First Amendment cases involving the press. This now seemingly permanent, annual pageant of media cases undoubtedly has significance for the development of both constitutional law and the character of American journalism, though oddly that significance has been little explored in the scholarly literature. This past year the Court had two cases, both of which received an unusual amount of discussion within the press. It is, of course, understandable, even if not wholly defensible, for the press to give disproportionate coverage …

Foreword, Lee C. Bollinger

Faculty Scholarship

The mass media are too important to American democracy, too capable of causing injury, and too easy a target for the perennial wish to find a scapegoat for the country's ills ever to be very far from the center of public attention and debate. That is certainly true today. And, though every generation probably thinks that it stands at a crossroads on the question what to do with the media, I would nevertheless venture to say that the issues of our time are more serious, and more complex, than ever before. One can safely predict, in any event, that we …

Corporate Law: What Is The Impact Of New Ali Proposals On Shareholder Litigation, John C. Coffee Jr., Michael P. Dooley

Faculty Scholarship

When the American Law Institute's Corporate Governance Project meets this month, one of the most hotly debated agenda items is likely to be its new rules governing shareholder litigation, which are now up for final approval.

The proposed change means that corporate boards will now have to prove in court that a decision to dismiss a shareholder claim alleging self-dealing was in the corporation's best interest. In addition, the requirement for a formal "demand" on the board by shareholders will be uniform, rather than subject to excuse, as it is under Delaware law and in the majority of states.

Drafters …

Cleaning House: Environmental Hazards Can Undermine A Property's Use And Value, Michael B. Gerrard

Faculty Scholarship

Numerous horror movies and books depict the woes that befall fictional homeowners who don't know or care that they are living too close to cemeteries or brooding woods or scenes of hauntings.

However, even the vivid imaginations of filmmakers and novelists can't conjure up some of the real-life horrors that environmental hazards can create for property owners. These hazards can destroy the value and salability of property, render it unusable for its intended purpose, and burden owners with clean-up costs, fines and lawsuits.

Fortunately, an alert eye and inexpensive tests can identify most common environmental dangers.

Voting Rights, Home Rule, And Metropolitan Governance: The Secession Of Staten Island As A Case Study In The Dilemmas Of Local Self-Determination, Richard Briffault

Faculty Scholarship

On January 1, 1898, amid fanfare and celebration, the city of Greater New York – "the greatest experiment in municipal government the world has ever known" – was born. The consolidation of the cities, counties, and towns on the New York State side of New York Harbor into one great metropolis was a capstone to one century of rapid economic and population growth and a fitting harbinger of a new century of urban greatness for the region and, indeed, the nation. Now, with another century mark approaching, there is a distinct possibility that the City of New York, already beset …

Paradigms Lost: The Blurring Of The Criminal And Civil Law Models – And What Can Be Done About It, John C. Coffee Jr.

Faculty Scholarship

Ken Mann's professed goal is to "shrink" the criminal law. To realize this worthy end, he advocates punitive civil sanctions that would largely parallel criminal sanctions, thereby reducing the need to use criminal law in order to achieve punitive purposes. I agree (heartily) with the end he seeks and even more with his general precept that "the criminal law should be reserved for the most damaging wrongs and the most culpable defendants." But I believe that the means he proposes would be counterproductive – and would probably expand, rather than contract, the operative scope of the criminal law as an …

Apocalypse Next Time?: The Anachronistic Attack On Habeas Corpus/Direct Review Parity, James S. Liebman

Faculty Scholarship

Today, a district court's habeas corpus review of the constitutionality of a state criminal conviction and the Supreme Court's direct review of the same question are nearly identical. Last Term, in Wright v. West, an otherwise mundane criminal procedure case, the Supreme Court rewrote the question presented to ask whether the parity between federal habeas corpus and direct appellate review should be destroyed. The Court proposed abandoning in habeas corpus an important trait shared by the two modes of review – de novo consideration of legal and mixed legal-factual questions.

To those who value meaningful habeas corpus review, the …

A Reply: Imperfect Bargains, Imperfect Trials, And Innocent Defendants, Robert E. Scott

Faculty Scholarship

To understand what is and is not wrong with plea bargaining, one must understand the relationship of bargains to trials. Unsurprisingly, we disagree with much of what Judge Frank Easterbrook and Professor Stephen Schulhofer say about that relationship. Most of those disagreements need not be rehearsed here; readers attentive enough to wade through their essays and ours will pick up the key points readily enough. But there is one point where the dispute is at once sharp and hidden. It has to do with the fact that both trials and bargains are flawed.

That fact might seem obvious, but the …

Getting It Right, Robert E. Scott

Faculty Scholarship

Writing a tribute for any beloved colleague who is retiring is a difficult experience. Writing about Tom Bergin, who is retiring after twenty-nine years at the Law School, is an even greater challenge. The challenge stems from Tom's legacy to his students and to his colleagues at the Law School; both the challenge and the legacy require some explanation.