Law Commons^™

Value Creation By Business Lawyers: Legal Skills And Asset Pricing, Ronald J. Gilson

Faculty Scholarship

What do business lawyers really do? Embarrassingly enough, at a time when lawyers are criticized with increasing frequency as nonproductive actors in the economy, there seems to be no coherent answer. That is not, of course, to say that answers have not been offered; there are a number of familiar responses that we have all heard or, what is worse, that we have all offered at one time or another without really thinking very hard about them. The problem is that, for surprisingly similar reasons, none of them is very helpful.

Antitrust Standing, Antitrust Injury, And The Per Se Standard, Daniel C. Richman

Faculty Scholarship

In 1970, a district court observed: "We must confess at the outset that we find antitrust standing cases more than a little confusing and certainly beyond our powers of reconciliation." The court could hardly have been faulted, for the confusion it noted has been endemic to these cases since the creation of the treble-damages action. Courts have never read section 4 of the Clayton Act literally to allow treble damages to every plaintiff able to attribute an economic loss to an antitrust violation. This unwillingness to recognize every such injury is fully consistent with the essential principle of antitrust law …

An Economic Analysis Of The Lost-Volume Retail Seller, Victor P. Goldberg

Faculty Scholarship

Suppose that a customer agrees to buy a boat and before it is delivered, he reneges. The dealer subsequently resells the boat to another customer at the same price. Has the seller suffered damages (aside from incidental damages) and, if so, should he be compensated? This question, dubbed the lost-volume seller problem, has been the subject of considerable legal analysis, usually in the context of explicating section 2-708(2) of the Uniform Commercial Code (U.C.C.). There have been a number of attempts to apply economic analysis to this difficult question, the most recent by Professors Goetz and Scott. Unfortunately, the economic …

The Press And The Public Interest: An Essay On The Relationship Between Social Behavior And The Language Of First Amendment Theory, Lee C. Bollinger

Faculty Scholarship

I would like to explore in this essay one aspect of the contemporary American debate over the theory of freedom of speech and press. The subject I want to address is this: whether the principle of freedom of speech and press should be viewed as protecting some personal or individual interest in speaking and writing or whether it should be seen as fostering a collective or public interest. Sometimes this issue is stated as being whether the first amendment protects a "right to speak" or a "right to hear," though in general the problem seems to be whether we should …

The Free Rider Problem, Imperfect Pricing, And The Economics Of Retailing Services, Victor P. Goldberg

Faculty Scholarship

In GTE Sylvania, the Supreme Court acknowledged what a group of law and economics scholars had been arguing for the previous two decades: vertical restrictions that limit intrabrand competition can have a desirable effect on interbrand competition. The Court approvingly accepted the argument that the free rider problem might justify a manufacturer's use of vertical restrictions. The argument, in its simplest form, is that if a retailer provides services such as advice and demonstrations to consumers, a consumer could make use of the service and then buy the product from a "no- frills" retailer. If the manufacturer cannot control the …

Rethinking Joint Custody, Elizabeth S. Scott, Andre Derdeyn

Faculty Scholarship

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce. The legal system is embracing this arrangement with remarkable enthusiasm, although until recently it was viewed as being of questionable legality and antithetical to the best interest of the child. Today, thirty states have joint custody laws, most of which have been enacted since 1980. A growing number of the more recent …

Federal Jurisdiction Over Preemption Claims: A Post-Franchise Tax Board Analysis, Ronald J. Mann

Faculty Scholarship

As Congress uses the commerce power to regulate areas of the economy previously controlled by the states, federal statutes conflict with state law with increasing frequency. When such conflicts occur, federal law "preempts" the state law under the supremacy clause of the United States Constitution. Litigants who foresee a preemption issue often seek a declaratory judgment of preemption or nonpreemption in order to clarify their rights and duties. This Note addresses the scope of federal question jurisdiction over declaratory judgment actions in which preemption is the only federal question raised.

Market Failure And The Economic Case For A Mandatory Disclosure System, John C. Coffee Jr.

Faculty Scholarship

Recent academic commentary on the securities laws has much in common with the battles fought in historiography over the origins of the First World War. The same progression of phases is evident. First, there is an orthodox school, which tends to see historical events largely as a moral drama of good against evil. Next come the revisionists, debunking all and explaining that the good guys were actually the bad. Eventually, a new wave of more professional, craftsmanlike scholars arrives on the scene to correct the gross overstatements of the revisionists and produce a more balanced, if problematic, assessment.

Litigation And Corporate Governance: An Essay On Steering Between Scylla And Charybdis, John C. Coffee Jr.

Faculty Scholarship

Criticism of the ALI's Corporate Governance Project has had two very different strains. Most vocal have been those critics who exhibit what one sympathetic observer has aptly termed "a neurotic fear of articulation." Although their expressed concern – namely, that courts will be encouraged to second guess boards and impose liability for arm's length business decisions that turned sour – would be a legitimate cause for anxiety if this indeed were the intent or likely effect of the Project, the underlying fear of these critics is more basic and instinctive. It is best revealed in the title of one critique …

The Perplexing Borders Of Justification And Excuse, Kent Greenawalt

Faculty Scholarship

This Article's central theme is that Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way. I explore three possible bases for drawing the distinction: (1) a distinction between warranted and wrongful conduct; (2) a division between general and individual claims; and (3) a distinction based on the rights of others. I show why none of these bases yields a clear and simple criterion for categorization. The difficulty rests largely on the conceptual fuzziness of the terms ''justification" and "excuse" in ordinary usage and on the uneasy quality of many of the moral …

Third Party Standing, Henry Paul Monaghan

Faculty Scholarship

Traditional constitutional theory posits a narrow conception of the issues that a litigant properly may assert. A litigant may invoke only his own constitutional rights or immunities; he may challenge a statute only in the terms in which it is applied to him; and, in the application process, courts have broad power to construe the relevant statutory language so as to avoid constitutional difficulties. The Yazoo case is perhaps the best known example of judicial adherence to these canons. There, a railroad claimed that a statute mandating speedy settlement of "all claims for lost or damaged freight" contravened the fourteenth …

The Mechanisms Of Market Efficiency, Ronald J. Gilson

Faculty Scholarship

Of all recent developments in financial economics, the efficient capital market hypothesis ("ECMH") has achieved the widest acceptance by the legal culture. It now commonly informs the academic literature on a variety of topics; it is addressed by major law school casebooks and textbooks on business law; it structures debate over the future of securities regulation both within and without the Securities and Exchange Commission; it has served as the intellectual premise for a major revision of the disclosure system administered by the Commission; and it has even begun to influence judicial decisions and the actual practice of law. In …

Some Unwise Reflections About Discretion, George P. Fletcher

Faculty Scholarship

In listening to discussions about discretion in the criminal process, one has the sense of sharply cut distinctions slipping toward a black hole in our language. All decisions by police, prosecutors, judges and jury are routinely called discretionary. This usage pervades respectable, basically sound papers. In a recent article in the Yale Law Journal, Goldstein and Marcus seek to demonstrate that discretion pervades the decisions of French, German and Italian prosecutors. They write: "Claims that prosecutorial discretion has been eliminated, or is supervised closely, are exaggerated. Discretion is exercised in each of the systems [French, German and Italian] for …

Albert J. Rosenthal In Grateful Appreciation, Michael I. Sovern

Faculty Scholarship

What a joy it is to work with Al Rosenthal! And how fortunate we are that our remarkable colleague will continue to grace the faculty to which he is devoted.

It is customary upon assuming a deanship to say nice things about your predecessor, and Al Rosenthal was no exception five years ago. But I mean far more than to return a compliment when I note how splendidly my successor as Dean, with a gently guiding hand, has enhanced the intellectual life of our law school, strengthening both faculty and student body and augmenting the support for their work. He …

The Place Of Agencies In Government: Separation Of Powers And The Fourth Branch, Peter L. Strauss

Faculty Scholarship

For the past few years the Supreme Court has been struggling with issues of government structure so fundamental that they might have been thought textbook simple, yet with results that seem to imperil the everyday exercise of law-administration. Under what circumstances can Congress assign the adjudication of contested issues in the first instance to tribunals that are not article III courts? The past century has witnessed the profuse growth of legislation assigning to special adjudicative tribunals – administrative agencies and other article I courts – the power to hold trial-type hearings that might otherwise have been placed in the article …

Criminal Coercion And Freedom Of Speech, Kent Greenawalt

Faculty Scholarship

This essay about constitutional limits on criminal coercion concerns a piece of a larger puzzle; how freedom of expression impinges on crimes that involve communication. The essay has two interrelated purposes. One is to reach some rather specific conclusions about the kinds of coercive threats that enjoy constitutional protection and to suggest how legislative formulations of criminal coercion can minimize coverage of such threats. The second purpose, more general and theoretical, is to show how the boundaries of freedom of expression can be understood and how courts can employ those boundaries to arrive at specific tests of constitutional protection. The …

Religion As A Concept In Constitutional Law, Kent Greenawalt

Faculty Scholarship

Because federal and state constitutions forbid government from infringing upon religious liberty or supporting religion, courts must sometimes decide whether a claim, activity, organization, purpose, or classification is religious. In most cases arising under these religion clauses, the religiousness of an activity or organization will be obvious. However; when the presence of religion is seriously controverted, the threshold question, "defining religion," becomes important. Most courts have prudently eschewed theoretical generalizations in approaching that question. Academic commentators have struggled to startlingly diverse proposals.

This Article suggests that in both free exercise and establishment cases, courts should decide whether something is religious …

Constitutional Law As Moral Philosophy, Gerard E. Lynch

Faculty Scholarship

The seemingly inexhaustible debate over the proper role of the Supreme Court in constitutional adjudication concerns an issue of enormous practical importance: whether the Court has or should have the power to overturn the decision of a democratically elected legislature to, say, prohibit abortions, affects not only the allocation of significant political power, but also the moral lives and indeed the very bodies of millions of citizens. For this reason, many contributions to that debate, from academics as well as from practicing politicians, have burned with the passion of political commitment, seeking to influence events directly by persuading judges (or …

The Federal Election Campaign Act And The 1980 Election, Richard Briffault

Faculty Scholarship

During the 1970's Congress and the Supreme Court paid the most sustained attention in American history to the financing of federal election campaigns. Congress passed a succession of measures, known collectively as the Federal Election Campaign Act ("FECA" or the "Act"), closely regulating the activities of candidates, parties, private organizations, and individuals in raising and spending campaign money.

Prior to FECA, election finance was largely an extension of the private marketplace. Campaigns were funded through private, voluntary contributions to parties and candidates, with donors contributing to the extent of their interest and wealth, and private economic inequalities were replicated in …

Copyright Law, David Goldberg, Jane C. Ginsburg

Faculty Scholarship

In 1983 and 1984 the federal courts continued to interpret the changes in copyright law effectuated by the 1976 Copyright Act. During this period the United States Supreme Court decided its first copyright case since adoption of the 1976 Act. In general, the year's decisions tend to accord expanded copyright protection to authors. Several decisions, however, have provoked or exacerbated uncertainties in a number of areas, including the protection accorded nonfiction works, the "fair use" excuse to copyright infringement, and compliance with the U.S. copyright formality of affixing notice to published copies of a work.

Visions Of Practice In Legal Thought, William H. Simon

Faculty Scholarship

This essay contrasts the vision of law practice expressed in the established professional culture with a vision derived from recent Critical legal writing.

Regulating The Market For Corporate Control: A Critical Assessment Of The Tender Offer's Role In Corporate Governance, John C. Coffee Jr.

Faculty Scholarship

Better answers often await better questions. In the wake of a recent series of provocative articles dealing with contested tender offers, several questions have been vigorously debated:

(1) Should management of the target company be allowed to resist a hostile tender offer in order to remain an independent company? Which, if any, of the various "shark repellent" measures by which a potential target can make itself unattractive to a bidder are justified?;

(2) If defensive tactics were generally forbidden, should the target company's management still be permitted to encourage competing bids thereby creating an auction?; and

(3) Do hostile takeovers …

Shelf Registration, Integrated Disclosure, And Underwriter Due Diligence: An Economic Analysis, Merritt B. Fox

Faculty Scholarship

In a recent article, Professor Barbara Banoff mounted a spirited defense of the Securities and Exchange Commission's decision to adopt permanently Rule 415 under the Securities Act of 1933 (Securities Act). Rule 415 permits the registration of securities that an issuer intends to "put on the shelf'' rather than sell immediately. By having a block of "shelf registered" securities available, an issuer avoids the delay of the registration process once the decision is made to proceed with a sale. Shelf registration also gives an issuer the flexibility to seek bids from a group of competing underwriters and bypasses the traditional …

Promise, Benefit, And Need: Ties That Bind Us To The Law, Kent Greenawalt

Faculty Scholarship

In this lecture, I address the fundamental question of whether we have a good moral reason for obeying the law. Understanding why we should obey the law, if we should, is the starting point for resolving conflicts between that duty and other claims upon us.

I am primarily concerned here with generally applicable laws of the state, but I also consider rules that apply to members of more limited associations, such as law schools and the bar. Concern over obligation to obey rules does not begin and end with rules of the state. Moreover, the relation of citizens to the …