Law Commons^™

Bad Judicial Activism And Liberal Federal-Courts Doctrine: A Comment On Professor Doernberg And Professor Redish, Jack M. Beermann

Faculty Scholarship

JUDUCIAL ACTIVISM IS often portrayed as a liberal vice. This perception is wrong both historically and, as Professor Redish argues, ³ currently as well. The federal judiciary has been and still is an activist institution, working with both substantive law and jurisdictional rules to achieve its own policy goals. It has done this in statutory, constitutional, and common-law matters. Specifically, the Supreme Court of the United States has actively-shaped the jurisdiction of the federal courts in a restrictive and generally conservative manner.

Professors Doernberg⁴ and Redish attack this last form of activism by the federal courts, activism in shaping …

The Mandatory/Enabling Balance In Corporate Law: An Essay On The Judicial Role, John C. Coffee Jr.

Faculty Scholarship

A half-filled glass of water can be described as either half full or half empty. The structure of American corporate law – partly enabling, partly mandatory in character – can be viewed in much the same way. Some commentators see American corporate law as primarily composed of mandatory rules that the shareholders themselves cannot waive or modify, In their view, this mandatory component compensates both for the absence of true bargaining among the parties and for the inevitable divergence of interests between the principals (the shareholders) and their agents (the managers and directors). Conversely, other commentators, to whom this Article …