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Full-Text Articles in Law

Introduction, George A. Bermann Jan 1991

Introduction, George A. Bermann

Faculty Scholarship

As recent pages of this journal and and any other number of indicators would suggest, legal developments in the European Community (EC or Community) have sparked unprecedented interest on the part of the American legal profession. That this journal, five or ten years ago, would have devoted an entire issue to these developments, while not unimaginable, was unlikely. Today, however, changes in the world legal community's focus make the choice of topic seem quite obvious. The question now seems not to be whether or even when to address the Community, but rather what specific areas to address and how ...


Morality As Interpretation, Joseph Raz Jan 1991

Morality As Interpretation, Joseph Raz

Faculty Scholarship

With the growing interest in interpretation as an activity essential in the study of the arts and of society it was inevitable that the question of the relation between morality and interpretation would attract considerable interest.Given that moral views and arguments are expressed in language, are essentially language bound, there is no doubt that the understanding of moral views and argument involves, at least at times, interpretation (of arguments and propositions, etc.). The same can be said of physics. The question is whether morality is interpretative in a way in which physics is not. Some writers have claimed that ...


The Trouble With Legal Ethics, William H. Simon Jan 1991

The Trouble With Legal Ethics, William H. Simon

Faculty Scholarship

Legal ethics is a disappointing subject. From afar, it seems exciting; it promises to engage the central normative commitments that make lawyering a profession and that account for much of the nonpecuniary appeal of the lawyer's role. Thus, when people see public spirit among lawyers threatened by commercial self-seeking, they often prescribe increased attention to the teaching and -discussion of legal ethics as a remedy.

But close up, legal ethics usually turns out to be dull and dispiriting. At most law schools, students find the course in legal ethics or professional responsibility boring and insubstantial, and faculty dread having ...


Reinventing The Outside Director: An Agenda For Institutional Investors, Ronald J. Gilson, Reinier Kraakman Jan 1991

Reinventing The Outside Director: An Agenda For Institutional Investors, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Managerialist rhetoric puts the institutional investor between a rock and a hard place. The institutional investor is depicted as a paper colossus, alternatively greedy and mindless, but in all events a less important corporate constituency than that other kind of investor, the "real" shareholder. The unspoken corollary is that, regardless of the institution's investment strategy, its interests may appropriately be ignored.

An institution that trades stock frequently is considered a short-term shareholder without a stake in the future of the corporation. According to the familiar argument, the short-term shareholder has no more legitimate claim on management's attention than ...


Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss Jan 1991

Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Faculty Scholarship

Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives and from the constitutional perspectives of separation of powers. His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our ...


Bondholder Coercion: The Problem Of Constrained Choice In Debt Tender Offers And Recapitalizations, John C. Coffee Jr., William A. Klein Jan 1991

Bondholder Coercion: The Problem Of Constrained Choice In Debt Tender Offers And Recapitalizations, John C. Coffee Jr., William A. Klein

Faculty Scholarship

The past decade saw the flourishing of risky, high-yield corporate debt, often called "junk" bonds. Too many companies took on too much debt, and the chickens are now coming home to roost as these bonds have begun to default with increasing frequency.The magnitude of the problem is potentially enormous; by one estimate, $318 billion of debt has either defaulted already or trades at yields indicating the market's skepticism that it will be repaid on maturity.

Facing the prospect of default, corporate issuers are seeking to restructure or recapitalize their financial structures at a correspondingly increased pace. The market ...


Faculty Resolution, Professor Alfred Hill, Harold L. Korn, Henry Paul Monaghan Jan 1991

Faculty Resolution, Professor Alfred Hill, Harold L. Korn, Henry Paul Monaghan

Faculty Scholarship

Alfred Hill is everything a law professor should be. He has mastered the two areas which are most important for a law teacher's success. These are classroom performance and legal scholarship. Few of us excel in either one of these areas. The fact that Al Hill excels in both makes him truly remarkable. We of the Columbia Law School Faculty are singularly blessed to have had him in our midst for more than twenty years.

Al Hill's excellence as a teacher is best demonstrated by the enthusiastic comments of his students. He has taught many courses; his current ...


Federal Statutory Review Under Section 1983 And The Apa, Henry Paul Monaghan Jan 1991

Federal Statutory Review Under Section 1983 And The Apa, Henry Paul Monaghan

Faculty Scholarship

Following hard on the heels of two unanimous decisions sustaining the authority of state courts to enforce federal law, two more unanimous rulings at the end of the 1989 Supreme Court Term strongly emphasized their duty to do so. McKesson Corporation v. Division of Alcoholic Beverages & Tobacco, held that the states must provide meaningful postpayment remedies for parties forced to pay state taxes that had been extracted contrary to the commerce clause, and Howlett v. Rose affirmed the existence of a nearly inescapable duty in the state courts to entertain section 1983 actions. Additionally, three days after Howlett, the Court ...


Liquidity Versus Control: The Institutional Investor As Corporate Monitor, John C. Coffee Jr. Jan 1991

Liquidity Versus Control: The Institutional Investor As Corporate Monitor, John C. Coffee Jr.

Faculty Scholarship

Within academia, paradigm shifts occur regularly, some more important than others. As the takeover wave of the 1980s ebbs, a significant shift now appears to be in progress in the way the public corporation is understood. Above all, the new thinking emphasizes that political forces shaped the modern corporation. While the old paradigm saw the structure of the corporation as the product of a Darwinian competition in which the most efficient design emerged victorious, this new perspective sees political forces as constraining that evolutionary process and possibly foreclosing the adoption of a superior organizational form. Thus, my colleague Professor Mark ...


The Constitutional Principle Of Separation Of Powers, Thomas W. Merrill Jan 1991

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

Faculty Scholarship

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

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


Justice Brennan, Peter L. Strauss Jan 1991

Justice Brennan, Peter L. Strauss

Faculty Scholarship

The editors of the St. John's Law Review have given me the boon of a few pages in which to celebrate Justice Brennan with you. The problem for a former law clerk, for anyone who has known this man, is to know where to begin, and how to keep the appreciation within manageable compass.


Voice, Not Choice, James S. Liebman Jan 1991

Voice, Not Choice, James S. Liebman

Faculty Scholarship

In John Chubb and Terry Moe's book, choice is hot; voice is not. As influential as their book has become in current policy debates, however, its data and reasoning may support policies the reverse of those that the authors and their "New Paradigm" disciples propose. In this review, voice is hot; choice is not.


Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr. Jan 1991

Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr.

Faculty Scholarship

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third ...


Recovery For Pure Economic Loss In Tort: Another Look At Robins Dry Dock V. Flint, Victor P. Goldberg Jan 1991

Recovery For Pure Economic Loss In Tort: Another Look At Robins Dry Dock V. Flint, Victor P. Goldberg

Faculty Scholarship

In Robins Dry Dock and Repair Co. v. Flint, the Supreme Court laid down the general proposition that claims for pure economic loss are not recoverable in tort. Although courts have sometimes ignored or distinguished Robins, its holding is still a central feature of tort law. In a recent en bane decision regarding claims by those injured by a chemical spill in the Mississippi River, the Fifth Circuit engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law.

The Robins rule is overbroad, lumping together a number of very ...


Home Rule, Majority Rule, And Dillon's Rule, Richard Briffault Jan 1991

Home Rule, Majority Rule, And Dillon's Rule, Richard Briffault

Faculty Scholarship

Clayton Gillette's In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law? is an ambitious attempt to breathe new life into an old local government law chestnut through the analytical tools of modern political economy. Gillette asserts that because the Rule permits state judges to invalidate local legislation that results from "one-sided lobbying," Dillon's Rule increases the allocational efficiency of local decision making and reduces the deadweight losses attendant on special interest pursuit of rent-seeking ordinances. According to Gillette, Dillon's Rule checks the danger of special interest abuse of local politics ...


Unlimited Liability And Law Firm Organization: Tax Factors And The Direction Of Causation, Ronald J. Gilson Jan 1991

Unlimited Liability And Law Firm Organization: Tax Factors And The Direction Of Causation, Ronald J. Gilson

Faculty Scholarship

In a recent issue of this Journal, Carr and Mathewson (1988) test a model of the impact of limited and unlimited liability regimes on the nature of firms by comparing the performance of law firms operated as partnerships and sole proprietorships (and therefore subject to unlimited liability) with that of law firms operated as corporations (and therefore subject to limited liability).


The Regulation Of Foreign Banks In Canada: Milelli Marks A Decade Of Ambiguity, Gillian Lester Jan 1991

The Regulation Of Foreign Banks In Canada: Milelli Marks A Decade Of Ambiguity, Gillian Lester

Faculty Scholarship

The recent decision of the Ontario Court of Appeal in R. v. Milelli culminates a decade of ambiguity in the laws regulating foreign banks in Canada. The case deals with the interpretation of s. 302(1)(a) of the Bank Act, which prohibits foreign banks from undertaking "any banking business" in Canada. The provisions are cryptic and contain no definition of the term "banking business". This has left foreign banks at the caprice of the statute. They are uncertain about the extent to which they are permitted either to deal with Canadian customers directly, or to participate in co-operative transactions ...


A Normative Theory Of Public Law Remedies, Susan Sturm Jan 1991

A Normative Theory Of Public Law Remedies, Susan Sturm

Faculty Scholarship

The remedial process in public law litigation is a practice in search of a theory. Courts are actively engaged in attempting to remedy violations of constitutional and statutory norms in complex organizational settings. The traditional adversary conception of adjudication has proven inadequate to the task of structuring remedies and promoting compliance in these settings. In response, lawyers, judges, and litigants are employing a variety of innovative roles and processes that do not conform to the accepted adjudicative ideal. Remedial activity in public law litigation frequently entails negotiation, informal dialogue, ex parte communication, broad participation by actors who are not formally ...


Constitutional Politics In Poland: A Report On The Constitutional Committee Of The Polish Parliament, Andrzej Rapaczynski Jan 1991

Constitutional Politics In Poland: A Report On The Constitutional Committee Of The Polish Parliament, Andrzej Rapaczynski

Faculty Scholarship

This Article is neither a comprehensive historical account of the work of the Constitutional Committee of the Polish Parliament nor a theoretical synthesis of recent constitutional developments in Poland. Rather, it is a mixture of theory, anecdote, and personal reminiscence that I feel at this point most capable of providing. As will be seen, the work on the new Polish constitution has in some ways been overtaken by events that unfortunately have always lurked in the background of the drafters' work and influenced their decisions. In fact, it is not clear that Poland will enact anything resembling the draft prepared ...


Lawyer Advice And Client Autonomy: Mrs. Jones's Case, William H. Simon Jan 1991

Lawyer Advice And Client Autonomy: Mrs. Jones's Case, William H. Simon

Faculty Scholarship

In one influential view, the lawyer's most basic function is to enhance the autonomy of the client. The lawyer does this by providing the information that maximizes the client's understanding of his situation and minimizes the influence of the lawyer's personal views.

This autonomy or "informed consent" view is often contrasted with a paternalist or "best interest" view most strongly associated with official decisions about children and the mentally disabled. Here the professional's role is to make decisions for the client based on the professional's view of the client's interests.

I am going to ...