Law Commons^™

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 …

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 …

Investment And Export Contracts In The People’S Republic Of China: Perspectives On Evolving Patterns, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

The remarkable economic reforms begun in the People's Republic of China (PRC) in 1979 have made possible transactions between Chinese and foreigners that were previously unthinkable. But the reforms have also caused, and are likely to continue to cause, dislocations and uncertainties which often impair Sino-foreign commercial relationships as they are embodied in contracts. This article discusses two different types of contracts, contracts to establish enterprises in China with foreign direct investment (investment contracts) and contracts to purchase Chinese products for export (export contracts). It further comments on why these contracts often cannot be implemented according to their terms for …

Ties That Bond: Duel Class Common Stock And The Problem Of Shareholder Choice, Jeffrey N. Gordon

Faculty Scholarship

Professor Gordon argues that the Securities and Exchange Commission (SEC) should adopt a rule enabling the New York Stock Exchange (NYSE) to maintain its traditional rule forbidding NYSE firms from recapitalizing with dual class common stock After critically evaluating the purported justifications for dual class recapitalizations, Professor Gordon presents empirical data to demonstrate that such recapitalizations may have a negative impact on shareholder wealth. He then describes the collective action and strategic choice problems in shareholder voting that allow managers to win approval for such wealth-reducing recapitalizations. The traditional NYSE rule is a means by which shareholders and managers have …

Foreword, Kimberlé W. Crenshaw

Faculty Scholarship

In 1987, I was honored to write the Foreword for a special issue on the National Black Law Journal. The special issue featured papers on race, racism and democracy written by students in a UCLA seminar that I had tailored to facilitate the production of publishable work by students. The state of legal education for African American students at the time was far from idyllic. Indeed, the Foreword was inspired by a host of events that I had witnessed both as a student and as a colleague that underscored the varied and subtle ways that race continued to marginalize students …

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 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 …

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 …

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.

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).

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 …

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.

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 …

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 …

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 …

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 …

A Vice Of Its Virtues: The Perils Of Precision In Criminal Codification, As Illustrated By Retreat, General Justification, And Dangerous Utterances, Kent Greenawalt

Faculty Scholarship

My subject, the problem of precision in criminal codes, is hardly novel. Greater precision has been a major aim of systematic codification, which can specify what behavior is criminal in a way that is more rational, coordinated, and exact than would be possible if liability were determined by occasional statutory enactment, by common-law development, or by a combination of occasional statutes and judicial development. Under this last approach, which was typical in the United States prior to the Model Penal Code, statutes loosely set out the list of offenses and their penalties; critical elements of offenses and many defenses of …

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 …

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 …

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 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 …

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. …

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.

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 …

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: …

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 …

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 First Amendment And The Ideal Of Civic Courage: The Brandeis Opinion In Whitney V. California, Vincent A. Blasi

Faculty Scholarship

"[T]he working class and the employing class have nothing in common ....” So began the Preamble to the Constitution of the I.W.W., the Industrial Workers of the World. "Between these two classes a struggle must go on until the workers of the World organize as a class, take possession of the earth, and the machinery of production and abolish the wage system." Nicknamed the Wobblies, this group advocated a form of militant unionism built around the ideal of One Big Union embracing all industries. The I.W.W. enjoyed its strongest appeal among the miners, loggers, agricultural laborers, and construction workers of …

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 …