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Banking Reform In The Chinese Mirror, Katharina Pistor Jan 2009

Banking Reform In The Chinese Mirror, Katharina Pistor

Faculty Scholarship

This paper analyzes the transactions that led to the partial privatization of China’s three largest banks in 2005-06. It suggests that these transactions were structured to allow for inter-organizational learning under conditions of uncertainty. For the involved foreign investors, participation in large financial intermediaries of central importance to the Chinese economy gave them the opportunity to learn about financial governance in China. For the Chinese banks partnering with more than one foreign investor, their participation allowed them to benefit from the input by different players in the global financial market place and to learn from the range of technical ...


Reforming Family Court: Getting It Right Between Rhetoric And Reality, Jane M. Spinak Jan 2009

Reforming Family Court: Getting It Right Between Rhetoric And Reality, Jane M. Spinak

Faculty Scholarship

Family Court reform efforts in recent years have expanded the court’s jurisdiction and supervisory authority while heralding the Family Court judge as the leader of a team of professionals who are solving the problems that bring families to court. This article challenges that reform paradigm by asking a series of questions about the way in which we talk about – rather than analyze – this court reform movement: What do we say about the reform work we do, and to what degree is what we say accurate? How does the way in which we talk about Family Court reform implicate our ...


Locating Innovation: The Endogeneity Of Technology, Organizational Structure And Financial Contracting, Ronald J. Gilson Jan 2009

Locating Innovation: The Endogeneity Of Technology, Organizational Structure And Financial Contracting, Ronald J. Gilson

Faculty Scholarship

There is much we do not understand about the “location” of innovation: the confluence, for a particular innovation, of the technology associated with the innovation, the innovating firm’s size and organizational structure, and the financial contracting that supports the innovation. This Essay suggests that these three indicia are simultaneously determined and discusses the interaction among them through four examples of innovative activity whose location is characterized by tradeoffs between pursuing the activity in an established company; in a smaller, earlier stage company; or some combination of the two. It first considers the dilemma faced by an established company in ...


The Empagran Exception: Between Illinois Brick And A Hard Place, Victor P. Goldberg Jan 2009

The Empagran Exception: Between Illinois Brick And A Hard Place, Victor P. Goldberg

Faculty Scholarship

In F. Hoffmann-La Roche Ltd. v. Empagran S.A., the Supreme Court interpreted the Foreign Trade Antitrust Improvements Act ("FTAIA") to bar an antitrust suit by foreign plaintiffs against foreign defendants despite the fact that the foreign and domestic markets were interconnected. I identify one narrow class of cases that would satisfy the statutory exception. Rather than focusing on the interrelatedness of the foreign and domestic prices, the inquiry centers on the resale of goods to the domestic market. The argument is a variant on Illinois Brick.


Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss Jan 2009

Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss

Faculty Scholarship

This is the introductory essay in an electronically published roundtable sponsored by the Vanderbilt Law Review on the Supreme Court's forthcoming consideration of Free Enterprise Fund v. Public Company Accounting Oversight Board, a case raising important separation of powers questions and thought by some to foreshadow overruling or limiting of such precedents as Humphrey's Executor v. United States (sustaining independent regulatory commissions) and Morrison v. Olson (sustaining the independent counsel). The PCAOB is an unusual independent government authority appointed by the Commissioners of the SEC and subject to its oversight; PCAOB members are only by the Commission, and ...


The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger Jan 2009

The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger

Faculty Scholarship

This Essay, prepared as part of the Emory Law Journal’s 2009 Thrower Symposium on Executive Power, addresses internal separation of powers constraints on the executive branch. After briefly describing the form such constraints take and assessing their constitutional legitimacy, the Essay takes up the question of whether internal constraints can be an effective restraint on presidential aggrandizement. I argue that although such constraints can have some purchase, focusing solely on internal measures frames the inquiry too narrowly and ignores the important interdependent relationship between internal and external checks on executive power. The Essay concludes with an assessment of one ...


Contract Interpretation Redux, Alan Schwartz, Robert E. Scott Jan 2009

Contract Interpretation Redux, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract interpretation remains the largest single source of contract litigation between business firms. In part this is because contract interpretation issues are difficult, but it also reflects a deep divide between textualist and contextualist theories of interpretation. While a strong majority of U.S. courts continue to follow the traditional, "formalist" approach to contract interpretation, some courts and most commentators prefer the "contextualist" interpretive principles as exemplified by the Uniform Commercial Code and the Second Restatement. In 2003, we published an article that set out a theory of contract interpretation to govern agreements between business firms. In that article, we ...


Judicial Elections As Popular Constitutionalism, David Pozen Jan 2009

Judicial Elections As Popular Constitutionalism, David Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich ...


The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon Jan 2009

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon

Faculty Scholarship

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative ...


Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan Jan 2009

Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Recent research on procedural justice and legitimacy suggests that compliance with the law is best secured not by mere threat of force, but by fostering beliefs in the fairness of the legal systems and in the legitimacy of legal actors. To date, however, this research has been based on general population surveys and more banal types of law violating behavior (such as unpaid parking tickets, excessive noise, etc.). Thus, while we know why normal people obey the law, we do not have similar knowledge as it pertains to the population most likely to commit serious violent crimes. This study fills ...


The Devil Made Me Do It: The Corporate Purchase Of Insurance, Victor P. Goldberg Jan 2009

The Devil Made Me Do It: The Corporate Purchase Of Insurance, Victor P. Goldberg

Faculty Scholarship

Despite the fact that public corporations ought to be risk neutral, they often carry insurance. This note first considers why insurance (or, more precisely, the package of services provided by insurance companies) might create value, regardless of the risk preferences of managers, shareholders, or other corporate stakeholders. One motive is that their contractual counter parties-buyers, lessors, and lenders – require that they carry insurance. Two explanations for why the requirement might be value enhancing are proposed.


Facial And As-Applied Challenges Under The Roberts Court, Gillian E. Metzger Jan 2009

Facial And As-Applied Challenges Under The Roberts Court, Gillian E. Metzger

Faculty Scholarship

One recurring theme of the early Roberts Court's jurisprudence to date is its resistance to facial constitutional challenges and preference for as-applied litigation. On a number of occasions the Court has rejected facial constitutional challenges while reserving the possibility that narrower as-applied claims might succeed. Unfortunately, the Roberts Court has not matched its consistency in preferring as-applied constitutional adjudication with clarity about what this preference means in practice. The Court itself has noted that it remains divided over the appropriate test to govern when facial challenges are available. Equally or more important, the Court has made little effort to ...


Contracts, Orphan Works, And Copyright Norms: What Role For Berne And Trips?, Jane C. Ginsburg Jan 2009

Contracts, Orphan Works, And Copyright Norms: What Role For Berne And Trips?, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright's exclusivity. At the other end, the difficulties arise not from ...


Enhancing Investor Protection And The Regulation Of Securities Markets, John C. Coffee Jr. Jan 2009

Enhancing Investor Protection And The Regulation Of Securities Markets, John C. Coffee Jr.

Faculty Scholarship

This is the congressional testimony of Professor John C. Coffee, Jr., before the United States Senate Committee on Banking, Housing and Urban Affairs, March 10, 2009.


On The Origins Of Originalism, Jamal Greene Jan 2009

On The Origins Of Originalism, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common-law adjudicative norm, but whose judicial cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses ...


United States Detention Operations In Afghanistan And The Law Of Armed Conflict, Matthew C. Waxman Jan 2009

United States Detention Operations In Afghanistan And The Law Of Armed Conflict, Matthew C. Waxman

Faculty Scholarship

Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the policy matter – in waging ...


Street Stops And Broken Windows Revisited: The Demography And Logic Of Proactive Policing In A Safe And Changing City, Jeffrey Fagan, Amanda Geller, Garth Davies, Valerie West Jan 2009

Street Stops And Broken Windows Revisited: The Demography And Logic Of Proactive Policing In A Safe And Changing City, Jeffrey Fagan, Amanda Geller, Garth Davies, Valerie West

Faculty Scholarship

The contributions of order-maintenance policing and broken windows theory to New York City’s remarkable crime decline have been the subject of contentious debate. The dominant policing tactic in New York since the 1990s has been aggressive interdiction of citizens through street encounters in the search for weapons or drugs. Research showed that minority citizens in the 1990s were disproportionately stopped, frisked and searched at rates significantly higher than would be predicted by their race-specific crime rates, and that this excess enforcement was explained by the social structure of predominantly minority neighborhoods than by either their disorder or their crime ...


Contract Design And The Structure Of Contractual Intent, Jody S. Kraus, Robert E. Scott Jan 2009

Contract Design And The Structure Of Contractual Intent, Jody S. Kraus, Robert E. Scott

Faculty Scholarship

Modern contract law is governed by a two-stage adjudicative regime – an inheritance of the centuries-old conflict between law and equity. Under this regime, formal contract terms are treated as prima facie provisions that courts can override by invoking equitable doctrines so as to substantially “correct” the parties’ contract by realigning it with their contractual intent. This ex post judicial determination of the contractual obligation serves as a fallback mechanism for vindicating the parties’ contractual intent whenever the formal contract terms fall short of achieving the parties’ purposes. Honoring the contractual intent of the parties is thus the central objective of ...


Heller High Water? The Future Of Originalism, Jamal Greene Jan 2009

Heller High Water? The Future Of Originalism, Jamal Greene

Faculty Scholarship

This Article considers the future of originalism in the wake of the Supreme Court's 2008 decision in District of Columbia v. Heller. It argues that, although Heller is in many ways a triumph for proponents of originalism, it might also represent a high water mark for the doctrine and for the political movement that supports it. There is little reason to believe that the cases of relative first impression that originalism feeds on will be readily available in the near future, and the politics of the Court and of the country do not augur the appointment of additional originalist ...


Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt Jan 2009

Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt

Faculty Scholarship

The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration – the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s – of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It is important ...


Randomization In Criminal Justice: A Criminal Law Conversation, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph Jan 2009

Randomization In Criminal Justice: A Criminal Law Conversation, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid the pitfalls ...


Responsibility And The Negligence Standard, Joseph Raz Jan 2009

Responsibility And The Negligence Standard, Joseph Raz

Faculty Scholarship

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.


Excuse Doctrine: The Eisenberg Uncertainty Principle, Victor P. Goldberg Jan 2009

Excuse Doctrine: The Eisenberg Uncertainty Principle, Victor P. Goldberg

Faculty Scholarship

Professor Mel Eisenberg argued in a recent paper for an expansion of the excuse doctrines. He argues that performance should be excused in those instances when parties tacitly assume that a given kind of circumstance will not occur during the contract time (the shared-assumption test). In addition, he argues that there should be a partial excuse when a change in prices would be sufficiently large to leave the promisor with a loss significantly greater than would have reasonably been expected (the bounded-risk test). This paper questions his first proposition by re-examining the Coronation cases and Taylor v Caldwell. His bounded-risk ...


Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson Jan 2009

Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson

Faculty Scholarship

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 1996-97 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast,has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in ...


Pot As Pretext: Marijuana, Race And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan Jan 2009

Pot As Pretext: Marijuana, Race And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than ten years later. This rise has been a notable component of the City’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “Stop, Question, and Frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana ...


Neoliberal Penality: The Birth Of Natural Order, The Illusion Of Free Markets, Bernard E. Harcourt Jan 2009

Neoliberal Penality: The Birth Of Natural Order, The Illusion Of Free Markets, Bernard E. Harcourt

Faculty Scholarship

What work do the categories “the free market” and “regulation” do for us? Why do we incarcerate one out of every one hundred adults? These seemingly unrelated questions, it turns out, are deeply interconnected. The categories of free and regulated markets emerged as an effort to make sense of irreducibly individual phenomena – unique forms of market organization. In the process, these categories helped shape our belief that the economic realm is characterized by natural order and equilibrium, and that the only legitimate sphere of government intervention is policing and punishment. The consequences have been devastating: first, in distorting and expanding ...


Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt Jan 2009

Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt

Faculty Scholarship

A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?

The answers to these questions are ...


The So-Called Right To Privacy, Jamal Greene Jan 2009

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the 'so-called' right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its proponents ...


Rulemaking And The American Constitution, Peter L. Strauss Jan 2009

Rulemaking And The American Constitution, Peter L. Strauss

Faculty Scholarship

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise ...


Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss Jan 2009

Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss

Faculty Scholarship

This essay was written as a contribution to one of Foundation's "Story" series. In Geier, a lawsuit had been brought on behalf of a teenager whose injuries from an accident might have been lessened if her car had contained an airbag. Plaintiffs sued on the straightforward basis that the design choice to omit a safety device of proven merit made the car unreasonably hazardous. Federal safety regulations had required the maker of her car to install some such device as an airbag in at least 10% of the cars it made the year it made her car – but her ...