Law Commons^™

A Reply To Michael Goldsmith, Gerard E. Lynch

Faculty Scholarship

I am grateful for Professor Michael Goldsmith's response to my discussion of RICO. It is always gratifying to find that one's writings have stimulated thought and debate.

Professor Goldsmith's criticisms of my discussion come in three parts. First, he claims that I have misread the history of RICO's adoption. Second, he objects to my criticisms of its scope. Third, he argues that the statute as now drafted serves prosecutorial purposes that would not be captured by the proposals I make for its replacement. Professor Goldsmith's arguments are not persuasive.

Nicaragua: United States Assistance To The Nicaraguan Human Rights Association And The Nicaraguan Resistance, Suzanne B. Goldberg, Lee Crawford, Kevin Reed, John Tennant

Faculty Scholarship

The question of providing aid to the Nicaraguan Resistance has been significant to United States human rights policy throughout the Reagan Administration. Although events have changed repeatedly during the winter of 1988, including a truce between the Nicaraguan Government and the Resistance and a Congressional decision not to provide military aid to the Resistance, the underlying policy issues remain constant. The Harvard Human Rights Yearbook presents two notes, infra, discussing the Military Construction Appropriations Act of 1987, which granted $100 million in aid to the Nicaraguan Resistance. The first note discusses the Nicaraguan Human Rights Association (Asociacidn Nicaraguense Pro-Derechos Humanos …

The Committee On The Constitutional System Proposals: Coherence And Dominance, Philip Chase Bobbitt

Faculty Scholarship

I have been a fellow traveler of the Committee on the Constitutional System virtually since its inception; indeed, I believe I was present when Mr. Cutler first made the speech at the University of Texas that became, "To Form a Government." During all this time I have never been able to quite free myself from the conviction that his concerns were absolutely right and fundamental to our era. Nor have I been able to persuade myself that the reforms that he recommends justify a departure from the framers' conception. I suppose this is why I was selected to give a …

Lessons Of The Iran-Contra Affair: Are They Being Taught?, Philip C. Bobbitt

Faculty Scholarship

The issues I am going to talk about today vary from the very straightforward to the somewhat complicated. One thing ties them together – my dismay at how little the fundamental constitutional issues of the Iran-contra affair seem to have been brought to the surface, either by the hearings, or by the commentary in the press, or even by the schools that led us to this affair in the first place.

I want to talk about three issues which represent the failure of civics education in this country. The three questions are: 1) what is wrong with pursuing secret …

Mistake In The Model Penal Code: A False False Problem, George P. Fletcher

Faculty Scholarship

No solution seems more gratifying to the modern theorist than to claim that an apparently serious problem is not really a problem at all. By branding nonfalsifiable propositions as nonsense, the Vienna circle of logical positivists discovered that the metaphysical concerns of others were really false problems. By ridding philosophy of false problems, Wittgenstein thought that he could let the fly escape from the bottle; he could release the philosophical spirit from its confounding constraints. Brainerd Currie brought this method to the law with his justly famous theory of false conflicts in the conflicts of laws. There was no need …

The Hague Evidence Convention In The Supreme Court: A Critique Of The Aérospatiale Decision, George A. Bermann

Faculty Scholarship

With its decision in Société Nationale Industrielle Aérospatiale v. United States District Court, the United States Supreme Court resolved what had been widely regarded as "one of the most difficult and important issues in international civil litigation in United States courts." This opportunity arose out of the divergence of views among American courts on the proper way to reconcile the need for full disclosure of evidence with respect for the sensitivities of foreign states where that evidence might be located. The case before the Supreme Court, like many lower court cases, dealt specifically with the impact of the Hague …

The Rule Of Recognition And The Constitution, Kent Greenawalt

Faculty Scholarship

This essay is about ultimate standards of law in the United States. Not surprisingly, our federal Constitution figures prominently in any account of our ultimate standards of law, and a discussion of its place is an apt jurisprudential endeavor for the bicentennial of the constitutional convention. Although in passing I offer some comments on constitutional principles, this essay is not about how the Constitution, or indeed other legal materials, should be understood and interpreted. Rather, it attempts to discern the jurisprudential implications of widespread practices involving the Constitution and other standards of law.

No Exit?: Opting Out, The Contractual Theory Of The Corporation, And The Special Case Of Remedies, John C. Coffee Jr.

Faculty Scholarship

Aloof and insular as corporate law often seems, it cannot remain uninfluenced for very long by developments in the mainstream of American civil law. In that mainstream, there is today flowing a strong, swift current called "tort reform." As currents go, this one is remarkably broad and perhaps a little shallow, but on it floats a number of diverse legislative proposals – ceilings on liability, restrictions on attorneys' fees, greater reliance on alternative methods of dispute resolution, restrictions on joint and several liability and contribution, and the curtailment of punitive damages. All of these proposals flow from the same wellspring: …

Colors In Conflicts: Moral Rights And The Foreign Exploitation Of Colorized U.S. Motion Pictures, Jane C. Ginsburg

Faculty Scholarship

This article explores an international aspect of the current debate over colorized motion pictures. Under the present U.S. copyright law, most film directors and other creative contributors to an audiovisual work are unlikely to obtain injunctive relief from a U.S. court against the exhibition or dissemination of color-encoded versions of black and white originals. The difficulty is not simply that the U.S. copyright law does not recognize a specific moral right of integrity independent of economic rights. The director's poor domestic prospects are largely due to U.S. copyright law's work-made-for-hire doctrine. Most contributors to an audiovisual work are employees for …

Protecting The Parental Rights Of Incarcerated Mothers Whose Children Are In Foster Care: Proposed Changes To New York's Termination Of Parental Rights Law, Philip Genty

Faculty Scholarship

In the past decade, the number of female prisoners in New York state and city jails has risen dramatically. Currently, there are 1,890 women incarcerated in New York State prisons, and an additional 1,626 women confined in New York City jails. Approximately seventy- two percent of the women in state prisons are parents, and, according to one informal study, nearly sixty percent of the women in city prisons are single parents with minor children. While some of these women can make formal or informal child care arrangements with relatives or close friends, many others must turn to state-regulated foster care. …

The Uncertain Case For Takeover Reform: An Essay On Stockholders, Stakeholders And Bust-Ups, John C. Coffee Jr.

Faculty Scholarship

In this Article, Professor John Coffee considers under what circumstances there could be a legitimate role for state regulation of tender offers. Professor Coffee suggests that state anti-takeover laws could (but do not) function to protect other stakeholders, including corporate management, in the target corporation where the implicit contract between the corporation and these stakeholders has broken down. He advances a model of corporate directors as mediators between shareholders and stakeholders in order to protect the expectations embodied in a web of implicit and explicit contracts.

Professor Coffee suggests that takeovers would be more palatable if the interests of stakeholders …

The Ninth Amendment And The Unwritten Constitution: The Problems Of Constitutional Interpretation, Andrzej Rapaczynski

Faculty Scholarship

This article is about two things; one general, the other specific. The general point is about the nature of interpretation and of the constraints that the text places on interpretation. The specific is about the ninth amendment.

My general claim about interpretation is that no textual provision by itself seriously constrains how it is going to be interpreted. This, I argue, is true not just about the open-ended provisions like the ninth amendment, but quite generally, about all textual provisions. The fact that no text by itself constrains interpretation, however, does not mean that interpretation is unconstrained; only that constraints …

Drafting An Effective Greenmail Prohibition, Ronald J. Gilson

Faculty Scholarship

Hostile tender offers have become a recurrent political issue. In recent years Congress has held seemingly endless hearings on the subject, and by now the testimony has settled into a familiar dialogue. Potential acquirers cast themselves as the embodiment of Adam Smith's invisible hand – their activities energize the market for corporate control with the desirable result of improving the efficiency of corporate management. Management of potential targets, in turn, claim the role of Albert Chandler's visible hand – efficient managers who internalize a function previously carried out by an inefficient market. Their argument is that because the market for …

The Scope Of Consular Immunity Under The Vienna Convention On Consular Relations: Towards A Principled Interpretation, Curtis J. Milhaupt

Faculty Scholarship

A consular officer, mistaken for a trespasser as he leaves his mission to attend a cultural function, struggles with a police officer and is subsequently charged with assault and battery. The Vienna Convention on Consular Relations provides that consular officers are immune from jurisdiction for "acts performed in the exercise of consular functions." Does the Vienna Convention shield the consular officer from suit? The scope of consular immunity is uncertain because courts differ in their application of the Convention's immunity rule.

This Note argues that a principled interpretation of the scope of consular immunity consistent with the Vienna Convention requires …

Standards For Organizational Probation: A Proposal To The United States Sentencing Commission, John C. Coffee Jr., Richard Gruner, Christopher D. Stone

Faculty Scholarship

This proposal was prepared by the authors in their capacities as consultants to the United States Sentencing Commission. It has not been adopted or endorsed by the Commission. If adopted, the proposal would constitute Part D(2) of the Sentencing Commission's Organizational Sentencing Guidelines (to be continued in Chapter 8 of the Commission's Guidelines Manual).

Hush: The Criminal Status Of Confidential Information After Mcnally And Carpenter And The Enduring Problem Of Overcriminalization, John C. Coffee Jr.

Faculty Scholarship

Each of the last three decades has witnessed an intense public reaction to a distinctive type of "white collar" crime. In the early 1960's, public attention was riveted by the Electrical Equipment conspiracy and the image of senior corporate executives of major firms meeting clandestinely to fix prices. In the mid-1970's, the focus shifted to corporate bribery, as the media ran daily stories regarding questionable payments abroad and illegal political contributions at home. The representative white collar crime of the 1980's is undoubtedly "insider trading." The archetype of this new kind of criminal in the public's mind is Ivan Boesky …

The Role Of The Market Model In Corporate Law Analysis: A Comment On Weiss And White, Merritt B. Fox

Faculty Scholarship

In a recent article, Elliott Weiss and Lawrence J. White sought to establish that seven decisions of the Delaware courts concerning corporation law had little value in predicting the future conduct of courts and corporations under the Delaware Corporations Law. Weiss and White relied, in part, on a statistical analysis of changes in the prices of publicly traded shares in Delaware corporations to show that the seven studied decisions had no statistically significant market impact.

In this Comment, Professor Fox takes issue with the explanation Weiss and White give for their data. Although the absence of an observed market impact …

Impossibility And Related Excuses, Victor P. Goldberg

Faculty Scholarship

In the first section I present an e of why reasonable businessmen would choose to excuse performance for some changed circumstances, but not others. In the remainder of the paper I will analyze specific problems that have arisen in the impossibility case law and literature. The explanation forwarded in Section 1 will play a prominent role in much of that discussion. Largely because their paper stimulated my thoughts on the problem, I will contrast my analysis of some of the specific cases to that of Posner and Rosenfield [1977]. I will not, except in passing, critique the case law, the …

The Confirmation Process: Law Or Politics?, Henry Paul Monaghan

Faculty Scholarship

In testimony before the Senate Judiciary Committee, I argued (and still believe) that Judge Robert Bork possessed surpassing qualifications for an appointment to the Supreme Court. Subsequently, I became persuaded that my submission was incomplete. Additional argument was necessary to establish that my testimony, if accepted, imposed a constitutional duty on senators to vote for confirmation. To my surprise, further reflection convinces me that no such argument is possible.

Clarifying The Record: A Comment, Victor P. Goldberg

Faculty Scholarship

In their recent article in this journal, Boudreaux and Ekelund [1987] ha presented a distorted characterization of some of my work on the economics o regulation. The editor of this journal has graciously offered me the opportunity to respond to their criticisms and to redress some ambiguities, real or imagine in my earlier work.

Corporate Takeovers: Who Wins; Who Loses; Who Should Regulate, John C. Coffee Jr., Joseph A. Grundfest, Roberta Romano, Murray L. Weidenbaum

Faculty Scholarship

On December 3, 1987, during its 11th Annual Policy Conference in Washington, DC, the American Enterprise Institute convened a panel discussion on "Corporate Takeovers and Insider Trading: Who Should Regulate?" The panelists were John C. Coffee, Jr., professor of law at Columbia University; Joseph A. Grundfest, commissioner at the Securities and Exchange Commission; Roberta Romano, professor of law at Yale Law School; and Murray L. Weidenbaum, Mallinckrodt Distinguished University Professor and director of the Center for the Study of American Business at Washington University. The panel was moderated by Christopher C. DeMuth, president of AEI. The following discussion is drawn …

Toward A Race-Conscious Pedagogy In Legal Education, Kimberlé W. Crenshaw

Faculty Scholarship

It is both an honor and a pleasure to write the Foreword for this issue of the National Black Law Journal. This project represents the culmination of a joint effort involving the NBLJ, Dean Susan Westerberg Prager and me. The project grew out of discussions that began in the Spring of 1987 in which we explored various ways that the law school could support the production of publishable student material for the Journal. I initially considered sponsoring interested students in independent research projects; however, a high level of student interest, an obvious overlap between proposed student topics, and my …

Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery W. Katz

Faculty Scholarship

Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

Ethical Discretion In Lawyering, William H. Simon

Faculty Scholarship

In this Article, Professor Simon argues that conventional approaches to legal ethics are too categorical. Rather than operating within a system of formalized ethical rules, he argues, lawyers should exercise judgment and discretion in deciding what clients to represent and how to represent them. In exercising this discretion, lawyers should seek to "do justice." They should consider the merits of the client's claims and goals relative to those of opposing parties and other potential clients. They should also consider the substantive merits of the client's claims and the reliability of the standard legal procedures for resolving the problem at hand. …

Children's Preference In Adjudicated Custody Decisions, Elizabeth S. Scott, N. Dickon Reppucci, Mark Aber

Faculty Scholarship

Historically, courts usually paid little attention to the child's wishes in deciding which parent should have custody upon divorce. Today, statutes in many states direct courts to consider the child's preference, often as one among several factors that guide decisionmaking. With some exceptions, the law gives only general guidance and does not specify under what circumstances and to what extent the child's desire should affect the decision. Little is known about how important this factor is, what variables influence the weight accorded the child's preference, or how courts obtain and evaluate evidence about the child's wishes.

This Article began as …

Accountable Accountants: Is Third-Party Liability Necessary?, Victor P. Goldberg

Faculty Scholarship

Should accountants be liable to third parties if they conduct an audit in negligent manner? A half century ago, in Ultramares Corporation v. Touche, Niven & Co., Cardozo argued that they should not, unless their performance could be characterized as fraud. In recent years, courts in a minority of jurisdictions have concluded that Cardozo's argument is no longer compelling and they have found that "foreseeable" third parties could bring a tort action for ordinary negligence against the accountants. In addition to being subject to tort actions, accountants may also be liable under federal and state securities laws.

Suits against …

Race, Reform, And Retrenchment: Transformation And Legitimation In Antidiscrimination Law, Kimberlé W. Crenshaw

Faculty Scholarship

Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America. In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans. The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities. The Critical scholars, who emphasize the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices …

One Hundred And Two Years Later: The U.S. Joins The Berne Convention, Jane C. Ginsburg, John M. Kernochan

Faculty Scholarship

In historic votes on October 5 and October 12, the U.S. Senate and House of Representatives unanimously approved legislation designed to bring U.S. law into compliance with the Berne Convention. The legislation was signed by President Reagan on October 31, 1988. Also signed by the President was a Senate Resolution of October 20 of Ratification of the Berne Convention. Following deposit of the requisite instruments with the World Intellectual Property Organization in Geneva, U.S. adherence to Berne took effect on March 1, 1989.

For the U.S., this momentous step is the culmination of decades of struggle, including many failed attempts …

The Truth About Tax Reform, Michael J. Graetz

Faculty Scholarship

The Tax Reform Act of 1986 has been widely heralded as the most important tax legislation since the income tax was converted to a tax on the masses during the Second World War. Since his favorite proposal for a constitutional amendment – the one calling for a balanced budget – was not adopted, the 1986 Tax Reform Act clearly will be the major domestic achievement of Ronald Reagan's presidency. This law even produced the new Internal Revenue Code of 1986; no more Internal Revenue Code of 1954, as amended. It took until the very end of 1987 until we were …