Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 69

Full-Text Articles in Law

Bush V. Gore As An Equal Protection Case, Richard Briffault Jan 2002

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 failure ...


New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman Jan 2002

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of ...


Thirteen Ways Of Looking At The Law, Bert I. Huang Jan 2002

Thirteen Ways Of Looking At The Law, Bert I. Huang

Faculty Scholarship

In this short essay, I review Judge Richard Posner's book, Frontiers of Legal Theory.


Incomplete Law – A Conceptual And Analytical Framework And Its Application To The Evolution Of Financial Market Regulation, Katharina Pistor, Chenggang Xu Jan 2002

Incomplete Law – A Conceptual And Analytical Framework And Its Application To The Evolution Of Financial Market Regulation, Katharina Pistor, Chenggang Xu

Faculty Scholarship

This paper develops a conceptual framework for the analysis of legal institutions. It argues that law is inherently incomplete and that the incompleteness of law has a profound impact on the design of lawmaking and law enforcement institutions. When law is incomplete, residual lawmaking powers must be allocated; and enforcement agents have to be vested with law enforcement powers. The optimal allocation of lawmaking and law enforcement powers under incomplete law is analyzed with a focus on the legislature, regulators and courts as possible lawmakers, and courts as well as regulators as possible law enforcers. The timing and process of ...


Trade, Law, And Product Complexity, Daniel Berkowitz, Johannes Moenius, Katharina Pistor Jan 2002

Trade, Law, And Product Complexity, Daniel Berkowitz, Johannes Moenius, Katharina Pistor

Faculty Scholarship

How does the quality of national institutions that enforce the rule of law influence international trade? Anderson and Marcouiller (2001) argue that bad institutions located in the importer's country deter international trade because they enable economic predators to steal and extort rents at the importer's border. We complement this research and show how good institutions located in the exporter's country enhance international trade, in particular, trade in complex products whose characteristics are difficult to fully specify in a contract. We argue that both exporter and importer institutions impact international as well as domestic transaction costs in complex ...


The Demsetz Thesis And The Evolution Of Property Rights, Thomas W. Merrill Jan 2002

The Demsetz Thesis And The Evolution Of Property Rights, Thomas W. Merrill

Faculty Scholarship

Both conventional price theory and standard economic accounts of tort and contract law assume fixed property rights. In fact, however, property regimes are not static but change over time. Given the assumption of fixed property that otherwise prevails in economic literature, explaining the evolution of property rights is one of the great challenges for the economic analysis of law.

The point of departure for virtually all efforts to explain changes in property rights is Harold Demsetz’s path‐breaking article, “Toward a Theory of Property Rights.” The article is still widely cited and reproduced, especially in first‐year property courses ...


It's A Question Of Market Access, Kyle W. Bagwell, Robert W. Staiger, Petros C. Mavroidis Jan 2002

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 ...


Illiberal Liberalism: Liberal Theology, Anti-Catholicism, & Church Property, Philip A. Hamburger Jan 2002

Illiberal Liberalism: Liberal Theology, Anti-Catholicism, & Church Property, Philip A. Hamburger

Faculty Scholarship

Liberalism has long been depicted as neutral and tolerant. Already in the eighteenth-century, when Englishmen and Americans began to develop modem conceptions of what they called "liberality," they characterized it as elevated above narrow interest and prejudice. Of course, liberality or what now is called "liberalism" can be difficult to define with precision, and there have been divergent, evolving versions of it. Nonetheless, liberalism has consistently been understood to transcend narrow self-interest or bigotry. Accordingly, many Americans have confidently believed in it as a neutral, tolerant, and even universalistic means of claiming freedom from the constraints of traditional and parochial ...


The Birth, Death, And Rebirth Of The World Trade Center And The Fate Of New York, Michael B. Gerrard Jan 2002

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.


Discretion In Long-Term Open Quantity Contracts: Reining In Good Faith, Victor P. Goldberg Jan 2002

Discretion In Long-Term Open Quantity Contracts: Reining In Good Faith, Victor P. Goldberg

Faculty Scholarship

Long-term contracts often promise to deliver the seller's full output, the buyer's requirements, or some variation on these. For example, an electric utility might enter into a thirty year contract with a coal mine promising that it will take all the coal needed to supply a particular generating plant. These open quantity contracts have raised two issues. The first is whether the promise was illusory. If the utility had no duty to take any coal, a court could have found that there was no consideration and, therefore, no contract. While there was a time when full output and ...


The Professional Responsibilities Of The Public Official's Lawyer: A Case Study From The Clinton Era, William H. Simon Jan 2002

The Professional Responsibilities Of The Public Official's Lawyer: A Case Study From The Clinton Era, William H. Simon

Faculty Scholarship

No one has sought more persistently to focus our attention on the relation of professional duty and personal integrity than Thomas Shaffer. Shaffer's work is the most powerful defense of integrity in the legal ethics literature, and it offers the most useful set of strategies for vindicating integrity in law practice. This Essay was conceived in the spirit of Shaffer's distinctive preoccupations and commitments, and it is a pleasure to present it in an issue dedicated to him.


The Contested Right To Vote, Richard Briffault Jan 2002

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 ...


A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg Jan 2002

A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg

Faculty Scholarship

In international commodity transactions, intermediary certifiers of quantity and quality play a crucial role. Sometimes they err, and when they do, the aggrieved party can pursue remedies against the counterparty or against the intermediary, either in contract or tort. The remedy against the intermediary has depended, at least in part, on whether the plaintiff was in privity. Even absent privity, the aggrieved party could possibly recover in tort (or perhaps as a third-party beneficiary). So held Cardozo in the leading New York case Glanzer v. Shepard. Section I of this paper reviews the Glanzer litigation, with special emphasis on how ...


On Making Anti-Essentialist And Social Constructionist Arguments In Courts, Suzanne B. Goldberg Jan 2002

On Making Anti-Essentialist And Social Constructionist Arguments In Courts, Suzanne B. Goldberg

Faculty Scholarship

One of my most intense disagreements with another lawyer during nearly a decade of lesbian and gay rights litigation concerned social constructionism. The lawyer (a law professor, if truth be told) wanted to argue in an amicus brief to the United States Supreme Court that sexual orientation, like race, was a social constructed category. He reasoned that since the Court had condemned race discrimination even while recognizing the "socio-political, rather than biological" nature of race, it would similarly be willing to invalidate a measure discriminating against lesbians, gay men and bisexuals, even while recognizing the socially constructed nature of sexual ...


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 ...


The Fault Of Not Knowing, George P. Fletcher Jan 2002

The Fault Of Not Knowing, George P. Fletcher

Faculty Scholarship

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author's view is that this distinction between objective and subjective standards is misunderstood and that, in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective ...


For My Friend, Philip Chase Bobbitt Jan 2002

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 Jan 2002

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.


Social Justice Movements And Latcrit Community: On Making Social Constructionist And Anti-Essentialist Arguments In Court, Suzanne B. Goldberg Jan 2002

Social Justice Movements And Latcrit Community: On Making Social Constructionist And Anti-Essentialist Arguments In Court, Suzanne B. Goldberg

Faculty Scholarship

This article examines the difficulties associated with identity-based arguments in litigation. In particular, the article considers the ways in which anti-essentialist and social constructionist framings of identity clash with judicial preferences for fixed identity categories. I review cases in which courts have addressed anti-essentialist and social constructionist arguments (both positively and negatively) and offer preliminary hypotheses to explain the limits on courts' willingness to accept these types of arguments


The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon Jan 2002

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.


Racing Towards The Top?: The Impact Of Cross-Listings And Stock Market Competition On International Corporate Governance, John C. Coffee Jr. Jan 2002

Racing Towards The Top?: The Impact Of Cross-Listings And Stock Market Competition On International Corporate Governance, John C. Coffee Jr.

Faculty Scholarship

During the 1990's, the phenomenon of cross-listing by issuers on international exchanges accelerated, with the consequence in the case of some emerging markets that trading followed, draining the original market of its liquidity. Traditionally, cross-listing has been viewed as an attempt to break down market segmentation and reach trapped pools of liquidity in distant markets. The globalization of financial markets, however, renders this explanation increasingly dated. A superior explanation is "bonding:" issuers migrate to U.S. exchanges in particular because by voluntarily subjecting themselves to the U.S.'s higher disclosure standards and greater threat of enforcement (both by ...


Blaming Youth, Elizabeth S. Scott Jan 2002

Blaming Youth, Elizabeth S. Scott

Faculty Scholarship

This essay addresses how law makers should think about developmental immaturity in assigning criminal punishment to young offenders. This issue has received little attention in policy debates or in the academic literature, in part because young offenders traditionally have been dealt with in a separate system that held to the view that their disposition was not governed by the criminal law. In the past generation, this model of juvenile of juvenile justice has become obsolete, and, under recent reforms, youths are increasingly tried and punished as adults. These policy changes have proceeded with little attention to the conventional limits on ...


The Storrs Lectures: Liberals And Romantics At War: The Problem Of Collective Guilt, George P. Fletcher Jan 2002

The Storrs Lectures: Liberals And Romantics At War: The Problem Of Collective Guilt, George P. Fletcher

Faculty Scholarship

Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms – none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that we support ...


The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill Jan 2002

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 ...


Educating Citizens, Peter L. Strauss Jan 2002

Educating Citizens, Peter L. Strauss

Faculty Scholarship

Socrates and his followers, the Cynics among them, put great store in educating the youths who would become the leaders of the Athenian republic. The Athenians agreed that education of their youth was of the utmost importance for their state, and executed Soc-rates for corrupting them. As I thought about how these concluding remarks could do more than cast a pale reflection of the extraordinary learning and thought that have preceded them, talking about education leapt to mind.


"When Smoke Gets In Your Eyes": Myth And Reality About The Synthesis Of Private Counsel And Public Client, John C. Coffee Jr. Jan 2002

"When Smoke Gets In Your Eyes": Myth And Reality About The Synthesis Of Private Counsel And Public Client, John C. Coffee Jr.

Faculty Scholarship

A recurring fallacy in any debate over legal ethics or public policy is to assume that the particular problem under examination is unique and unprecedented. Expand one's field of vision, and precedents and analogs quickly turn up. This rule applies with special force to the debate over retention by state attorneys general of private counsel to represent them on a contingent fee basis in the recent litigation against the tobacco industry. Because this litigation produced a highly successful outcome, while most private litigation against the tobacco industry has not, some are led to the conclusion that this combination of ...


Racing Towards The Top?: The Impact Of Cross-Listing And Stock Market Competition On International Corporate Governance, John C. Coffee Jr. Jan 2002

Racing Towards The Top?: The Impact Of Cross-Listing And Stock Market Competition On International Corporate Governance, John C. Coffee Jr.

Faculty Scholarship

Cross-listing by foreign issuers onto U.S. exchanges accelerated during the 1990s, bringing international market centers into competition for listings and draining liquidity from some regional markets. Although cross-listing has traditionally been explained as an attempt to break down market segmentation and to increase investor recognition of the cross-listing firm, the globalization of financial markets and instantaneous electronic communications render these explanations increasingly dated. A superior explanation is "bonding": Issuers migrate to U.S. exchanges because by voluntarily subjecting themselves to the United States's higher disclosure standards and greater threat of enforcement (both by public and private enforcers), they ...


100 Million Unnecessary Returns: A Fresh Start For The U.S. Tax System, Michael J. Graetz Jan 2002

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 ...


Opting For Real Death Penalty Reform, James S. Liebman Jan 2002

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience ...


Incomplete Compensation For Takings, Thomas W. Merrill Jan 2002

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 ...