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Recent Cases: Appellate Procedure - Force Of Circuit Precedent - Ninth Circuit Holds That Three-Judge Panels May Declare Prior Cases Overruled When Intervening Supreme Court Precedent Undercuts The Theory Of Earlier Decisions, Robert J. Jackson Jr. Jan 2003

Recent Cases: Appellate Procedure - Force Of Circuit Precedent - Ninth Circuit Holds That Three-Judge Panels May Declare Prior Cases Overruled When Intervening Supreme Court Precedent Undercuts The Theory Of Earlier Decisions, Robert J. Jackson Jr.

Faculty Scholarship

The nation's courts of appeals have struggled to devise a coherent approach to harmonizing existing circuit case law with intervening decisions of the Supreme Court.' When the Court directly overrules a decision of a court of appeals, it is agreed that the overruled decision loses the force of law. But when a Supreme Court opinion disfavors a circuit's jurisprudential theory, the courts of appeals must determine to what extent cases relying on the rejected theory remain good law. Recently, in Miller v. Gammie (Gammie II),2 the United States Court of Appeals for the Ninth Circuit, sitting en ...


The Making Of The Second Rehnquist Court: A Preliminary Analysis, Thomas W. Merrill Jan 2003

The Making Of The Second Rehnquist Court: A Preliminary Analysis, Thomas W. Merrill

Faculty Scholarship

The Supreme Court is implicitly assumed to have a certain unity of character under each Chief Justice. Hence, we refer to the "Marshall Court," the "Warren Court," and the "Rehnquist Court." A closer look at history reveals that this assumption of a natural Court defined by the tenure of each Chief Justice is often misleading. The Marshall Court had a different character late in its life than it did in its early years. Similarly, the Warren Court became distinctively more liberal and activist after 1962 when Felix Frankfurter retired and was replaced by Arthur Goldberg.

Although the Rehnquist Court is ...


A Theory Of Self-Enforcing Indefinite Agreements, Robert E. Scott Jan 2003

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 contract ...


The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt Jan 2003

The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt

Faculty Scholarship

The turn of the twentieth century marked a new era of individualization in the field of criminal law. Drawing on the new science of positivist criminology, legal scholars called for diagnosis of the causes of delinquence and for imposition of individualized courses of remedial treatment specifically adapted to these individual diagnoses. "[M]odern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes," leading criminal law scholars declared. "Thus the great truth of the present and the future, for criminal science ...


Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz Jan 2003

Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz

Faculty Scholarship

In 1970, when the National Environmental Policy Act (NEPA) was enacted, the new and exciting information management technologies were the handheld four-function calculator and the eight-track tape cassette. Three decades later, after the personal computer, the digital revolution, and the World Wide Web, the implementation of NEPA is still stuck in the world of 1970. Other aspects of the bureaucracy have seen reform-the E-Government Strategy, an E-Government Act, the creation of a new Office of Electronic Government within the Office of Management and Budget (OMB), and, to focus on the environmental arena, the breathtaking success of the web-based Toxic Release ...


Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon Jan 2003

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 bring to ...


Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon Jan 2003

Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon

Faculty Scholarship

Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.

The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the ...


Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer Jan 2003

Understanding Venture Capital Structure: A Tax Explanation For Convertible Preferred Stock, Ronald J. Gilson, David M. Schizer

Faculty Scholarship

The capital structures of venture capital-backed U.S. companies share a remarkable commonality: overwhelmingly, venture capitalists make their investments through convertible preferred stock. Not surprisingly, much of the academic literature on venture capital has sought to explain this peculiar pattern. Financial economists have developed models showing, for example, that convertible securities efficiently allocate control between the investor and entrepreneur,signal the entrepreneur's talent and motivation, and align the incentives of entrepreneurs and venture capitalists.

In this Article, we examine the influence of a more mundane factor on venture capital structure: tax law. Portfolio companies issue convertible preferred stock to ...


Equality And The Forms Of Justice, Susan Sturm Jan 2003

Equality And The Forms Of Justice, Susan Sturm

Faculty Scholarship

Justice and equality are simultaneously noble and messy aspirations for law. They inspire and demand collective striving toward principle, through the unflinching comparison of the "is" and the "ought." Yet, law operates in the world of the practical, tethered to the realities of dispute processing and implementation. The work of many great legal scholars and activists occupies this unstable space between principle and practice. Owen Fiss is one such scholar, attempting to straddle the world of the here-and-now and the imagined and then deliberately constructed future, the contours of which have been established during the founding moments of our constitutional ...


Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott Jan 2003

Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be. These gaps are unsurprising given the traditional definition of contract as embracing all promises that the law will enforce. Even a theory of contract law that focuses only on the enforcement of bargains must still consider the entire continuum from standard form contracts between firms and consumers to commercial contracts among businesses. No descriptive theory has yet explained a law of contract that comprehends such a broad domain. Normative theories that are grounded in a single ...


Privatization As Delegation, Gillian E. Metzger Jan 2003

Privatization As Delegation, Gillian E. Metzger

Faculty Scholarship

Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of ...


Learning From Conflict: Reflections On Teaching About Race And Gender, Susan Sturm, Lani Guinier Jan 2003

Learning From Conflict: Reflections On Teaching About Race And Gender, Susan Sturm, Lani Guinier

Faculty Scholarship

In 1992 had been teaching for four years at the University of Pennsylvania Law School. I taught voting rights and criminal procedure, subjects related to what I had done as a litigator. Preparing for class meant reading many of the same cases I had read preparing for trial. Some were even cases I had tried. Teaching offered me a fresh chance to read those cases with new interest. I could see the subtle linkages between cases that I had not previously noticed. From the distance of the academy, I observed the evolution of the doctrine without feeling overcome by the ...


Why Defenders Feel Defensive, Jane M. Spinak Jan 2003

Why Defenders Feel Defensive, Jane M. Spinak

Faculty Scholarship

The newest version of problem-solving courts has scarcely reached adolescence. Many of these courts remain in the "model" stage, attempting to create a structure and vision that will have a transformative, systemic effect. Others, drug courts in particular, have proliferated across the country and are on the verge of going to scale in many states. Lawyers representing individual clients in these courts are struggling to identify, define and perform their professional duties, at the same time that the courts are being created. To understand why it is a struggle, we need to contextualize the lawyers' experiences: what is it about ...


Damage To Family Relationships As A Collateral Consequence Of Parental Incarceration, Philip Genty Jan 2003

Damage To Family Relationships As A Collateral Consequence Of Parental Incarceration, Philip Genty

Faculty Scholarship

The most obvious and perhaps most serious collateral consequence of incarceration is family separation. Imprisonment undermines families and has a detrimental impact upon children, caretakers, and the communities in which they live. Unlike other collateral consequences, family separation has an irreversible impact upon both parents and children. The time apart is lost forever because a childhood can never be recovered.

This Essay will review the available statistical information about incarcerated parents and their children and discuss the detrimental effects of parental incarceration upon families. The Essay will conclude with some reflections about why the adverse consequences of incarceration for prisoners ...


The Case For Auctioning Countermeasures In The Wto, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger Jan 2003

The Case For Auctioning Countermeasures In The Wto, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

A prominent problem with the WTO dispute settlement procedures is the practical difficulty faced by small and developing countries in finding the capacity to effectively retaliate against trading partners that are in violation of their WTO commitments. In light of this problem, Mexico has proposed that retaliation rights be made tradeable.' We offer a first formal analysis of the possibility that retaliation rights within the WTO system be allocated through auctions. We show that the auctions exhibit externalities among bidders, and we characterize equilibrium bidder behavior under alternative auction formats. A key feature of auction format is whether the country ...


Frictions And Tax-Motivated Hedging: An Empirical Exploration Of Publicly-Traded Exchangeable Securities, William M. Gentry, David M. Schizer Jan 2003

Frictions And Tax-Motivated Hedging: An Empirical Exploration Of Publicly-Traded Exchangeable Securities, William M. Gentry, David M. Schizer

Faculty Scholarship

As financial engineering becomes more sophisticated, taxing income from capital becomes increasingly difficult. We offer the first empirical study of a high profile strategy known as "tax-free hedging," which offers economic benefits of a sale without triggering tax. We explore nontax costs that taxpayers face when hedging by issuing so-called "DECS," "PHONES," and other publicly-traded exchangeable securities. Focusing on 61 transactions between 1993 and 2001, we shed light on why taxpayers might prefer to hedge through private "over-the-counter" transactions: An offering of exchangeable securities is announced in advance and implemented all at once, triggering an almost 5 percent decline in ...


Professional Identity: Comment On Simon, Daniel C. Richman Jan 2003

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 ...


Prosecutors And Their Agents, Agents And Their Prosecutors, Daniel C. Richman Jan 2003

Prosecutors And Their Agents, Agents And Their Prosecutors, Daniel C. Richman

Faculty Scholarship

This Article seeks to describe the dynamics of interaction between federal prosecutors and federal enforcement agents, and to suggest how these dynamics affect the exercise of enforcement discretion. After considering the virtues and pitfalls of both hierarchical and coordinate organizational modes, the Article offers a normative model that views prosecutors and agents as members of a "working group," with each side monitoring the other. It concludes by exploring how this model can be furthered or frustrated with various procedural and structural changes.


Theorizing Community Justice Through Community Courts, Jeffery Fagan, Victoria Malkin Jan 2003

Theorizing Community Justice Through Community Courts, Jeffery Fagan, Victoria Malkin

Faculty Scholarship

Community justice practitioners argue that the justice system has long ignored its biggest clients-citizens and neighborhoods that suffer the everyday consequences of high crime levels. One response from legal elites has been a package of court innovations and new practices known as "community justice," part of a broader appeal to "community" and "partnership" common now in modern discourse on crime control. This concept incorporates several contemporary visions and expressions of justice within the popular and legal literatures: problem-solving courts (such as drug courts, mental health courts, domestic violence courts, gun courts, and, of course, juvenile courts); the inclusion of victims ...


The Concept Of Authorship In Comparative Copyright Law, Jane C. Ginsburg Jan 2003

The Concept Of Authorship In Comparative Copyright Law, Jane C. Ginsburg

Faculty Scholarship

In contemporary debates over copyright, the figure of the author is too-often absent. As a result, these discussions tend to lose sight of copyright's role in fostering creativity. I believe that refocussing discussion on authors – the constitutional subjects of copyright – should restore a proper perspective on copyright law, as a system designed to advance the public goal of expanding knowledge, by means of stimulating the efforts and imaginations of private creative actors. Copyright cannot be understood merely as a grudgingly tolerated way station on the road to the public domain. Nor does a view of copyright as a necessary ...


Unregulable Defenses And The Perils Of Shareholder Choice, Jennifer Arlen, Eric L. Talley Jan 2003

Unregulable Defenses And The Perils Of Shareholder Choice, Jennifer Arlen, Eric L. Talley

Faculty Scholarship

A number of corporate law scholars have recently proposed granting shareholders an enhanced right to oversee the use of takeover defenses. While these "shareholder choice" proposals vary somewhat in their content, they generally agree that shareholder oversight is justified if and only if shareholders hold a bona fide advantage over managers in evaluating and responding to hostile bids. This article challenges that basic premise, arguing that even if shareholders enjoy a comparative advantage over management in reacting to hostile bids, it does not follow that a shareholder choice regime is value enhancing, because it would give managers an incentive to ...


What Caused Enron?: A Capsule Social And Economic History Of The 1990'S, John C. Coffee Jr. Jan 2003

What Caused Enron?: A Capsule Social And Economic History Of The 1990'S, John C. Coffee Jr.

Faculty Scholarship

Between January 1997 and June 2002, approximately 10% of all listed companies in the United States announced at least one financial statement restatement. The stock prices of restating companies declined 10% on average on the announcement of these restatements, with restating firms losing over $100 billion in market capitalization over a short three day trading window surrounding these restatements. Such generalized financial irregularity requires a more generic causal explanation than can be found in the facts of Enron, WorldCom or other specific case histories.

Several different explanations are plausible, each focusing on a different actor (but none giving primary attention ...


A Theory Of Self-Enforcing Indefinite Agreements, Robert E. Scott Jan 2003

A Theory Of Self-Enforcing Indefinite Agreements, Robert E. Scott

Faculty Scholarship

All contracts are incomplete. But incomplete contracts differ along several key dimensions. Many contracts are incomplete because parties decline to condition performance on future states that they cannot observe or verify to courts. In these cases, the incompleteness is exogenous to the contract. Other agreements, however, appear to be "deliberately" incomplete in the sense that parties decline to condition performance on available, verifiable measures that could be specified in the contract at relatively low cost. Thus, incompleteness is endogenous to these agreements suggesting that the parties had other reasons for leaving the terms in question unspecified.

Traditional contract law doctrine ...


Reciprocal Effects Of Crime And Incarceration In New York City Neighborhoods, Jeffrey Fagan, Valerie West, Jan Holland Jan 2003

Reciprocal Effects Of Crime And Incarceration In New York City Neighborhoods, Jeffrey Fagan, Valerie West, Jan Holland

Faculty Scholarship

The social concentration of incarceration among non-whites is a recurring theme in criminal justice research and legal scholarship. Despite robust evidence of its social concentration, few studies have examined its spatial concentration, or the effects of spatially concentrated incarceration over time on individuals and social areas. In this article, we examine the growth and spatial concentration of incarceration in police precincts and smaller homogeneous neighborhoods in New York City from 1985-96. We show that rates of incarceration spiked sharply after 1985 as crime rates rose. Higher incarceration rates persisted through the 1990s, and declined far more slowly after 1990 than ...


Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott Jan 2003

Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

This article sets out a normative theory to guide decisionmakers in the regulation of contracts between firms. Commercial law for centuries has drawn a distinction between mercantile contracts and others, but modern scholars have not systematically pursued the normative implications of this distinction. We attempt to cure this neglect by setting out the theoretical foundations of a law merchant for our time. Firms contract to maximize expected surplus and the state permits markets to function because markets maximize social welfare. Thus, there is a correspondence of interest between firms and the state, which implies that, when externalities are absent, the ...


Unregulable Defenses And The Perils Of Shareholder Choice, Jennifer Arlen, Eric L. Talley Jan 2003

Unregulable Defenses And The Perils Of Shareholder Choice, Jennifer Arlen, Eric L. Talley

Faculty Scholarship

A number of corporate law scholars have recently proposed granting shareholders an enhanced right to oversee the use of takeover defenses. While these "shareholder choice" proposals vary somewhat in their content, they generally agree that shareholder oversight is justified if and only if shareholders hold a bona fide advantage over managers in evaluating and responding to hostile bids. This article challenges that basic premise, arguing that even if shareholders enjoy a comparative advantage over management in reacting to hostile bids, it does not follow that a shareholder choice regime is value enhancing, because it would give managers an incentive to ...


Controlling Controlling Shareholders, Ronald J. Gilson, Jeffrey N. Gordon Jan 2003

Controlling Controlling Shareholders, Ronald J. Gilson, Jeffrey N. Gordon

Faculty Scholarship

The rules governing controlling shareholders sit at the intersection of the two facets of the agency problem at the core of public corporations law. The first is the familiar principal-agency problem that arises from the separation of ownership and control. With only this facet in mind, a large shareholder may better police management than the standard panoply of market-oriented techniques. The second is the agency problem that arises between controlling and non-controlling shareholders, which produces the potential for private benefits of control. There is, however, a point of tangency between these facets. Because there are costs associated with holding a ...


Solving Problems V. Claiming Rights: The Pragmatist Challenge To Legal Liberalism, William H. Simon Jan 2003

Solving Problems V. Claiming Rights: The Pragmatist Challenge To Legal Liberalism, William H. Simon

Faculty Scholarship

Recent developments in both theory and practice have inspired a new understanding of public interest lawyering. The theoretical development is an intensified interest in Pragmatism. The practical development is the emergence of a style of social reform that seeks to institutionalize the Pragmatist vision of democratic governance as learning and experimentation. This style is reflected in a variety of innovative responses to social problems, including drug courts, ecosystem management, and "new accountability" educational reform. The new understanding represents a significant challenge to an influential view of law among politically liberal lawyers over the past 50 years. That view – Legal Liberalism ...


The Mechanisms Of Market Efficiency Twenty Years Later: The Hindsight Bias, Ronald J. Gilson, Reinier Kraakman Jan 2003

The Mechanisms Of Market Efficiency Twenty Years Later: The Hindsight Bias, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Twenty years ago we published a paper, "The Mechanisms of Market Efficiency," that sought to describe the institutional underpinnings of price formation in the securities market. Since that time, financial economics has moved forward on many fronts. The sub-discipline of behavioral finance has struggled to bring yet more descriptive realism to the study of financial markets. Two important questions are (1) how much has this new discipline changed our understanding of the efficiency and nature of the institutional mechanisms that set price in financial markets; and (2) how far does this discipline carry novel implications for the regulation of financial ...


Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard E. Harcourt Jan 2003

Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard E. Harcourt

Faculty Scholarship

New data on highway stops and searches from across the country have spawned renewed debate over racial profiling on the roads. The new data reveal consistently disproportionate searches of minority motorists, but, very often, an equal or lower general success rate – or "hit rate" – associated with those searches. Economists are developing new models of racial profiling to test whether the data are consistent with policing efficiency or racial prejudice, and argue that equal hit rates reflect that the police are maximizing the success rate of their searches. Civil liberties advocates are scrutinizing the same data and, in most cases, reaching ...