Law Commons^™

New Myths And Old Realities: The American Law Institute Faces The Derivative Action, John C. Coffee Jr.

Faculty Scholarship

Nothing in The American Law Institute's (ALI) Principles of Corporate Governance: Analysis and Recommendations (Principles) proved more controversial than the effort to develop fair and balanced standards for the derivative action. Only the topic of corporate takeovers seems to evoke an equally intense level of emotion among corporate lawyers. Not surprisingly then, Part VII (Remedies) of the Principles attracted the same attention from critics that a lightning rod does in a thunderstorm.

Unlike other ALI Restatements, however, the Principles also encountered a professional opposition, which lobbied against its adoption, both inside and outside the ALI, on behalf of various outside …

A Commentary On The Harmonization Of European Private Law, George A. Bermann

Faculty Scholarship

The idea behind bringing together these papers on harmonization in three such distinct fields as contract, copyright and telecommunications, and securities law must be that they may have something to tell us generally about the processes of harmonization in European private law. Each paper tells a story fascinating in its own right, but whether they in fact add up to something more, with implications for private law harmonization as a whole, is the question I naturally want to take up in this commentary.

Anti-Lesbian And -Gay Right Wing Initiatives: A Strategy For Response, Mary Newcombe, Suzanne B. Goldberg

Faculty Scholarship

The increasing visibility and political activism of the lesbian and gay community in this country has sparked a vicious backlash intended to reinforce restrictive notions of social morality and to stifle expressions of lesbian and gay identity. While this backlash has flourished in mainstream institutions, as in the U.S. Senate's hearings on lifting the military's ban against lesbians and gay men, it has also been incited on a grassroots level across the country by the Christian right wing, which has involved itself intimately in exploiting popular inclinations and reinforcing discrimination at the federal and local levels.

Regulatory Cooperation With Counterpart Agencies Abroad: The Faa's Aircraft Certification Experience, George A. Bermann

Faculty Scholarship

This Article examines in some detail the practice and experience of one agency, the Federal Aviation Administration, and more particularly its Aircraft Certification Service, that has of recent years consciously engaged in forms of concerted activity with certain counterpart agencies abroad. This "case study" is of particular interest because the FAA's practice of intergovernmentalism includes, but also goes beyond, cooperation in rulemaking to embrace a certain amount of cooperation in more routine aspects of administration. The study may also be of interest because the intergovernmentalism engaged in largely involves cooperation with a body – the European Joint Aviation Authorities – …

What He Was For, Eben Moglen

Faculty Scholarship

It will be said frequently in the years to come that an era in American history died when Thurgood Marshall left us. It will take some time for us to absorb the truth, for our sadness to be replaced by desperation. More than an era closed when his gallant heart failed him at last; in every corner of our battered country, maimed as it is by years of recklessly cultivated hatred, we lost the voice that constantly called us to attend to the work of our salvation.

The Dynamics Of Secrecy In The Environmental Impact Statement Process, Michael B. Gerrard

Faculty Scholarship

The environmental impact review laws – the National Environmental Policy Act (NEPA) and its state counterparts – are premised on the idea of full and open disclosure. The notion underlying these laws is that if the government and the public are fully informed of the impacts of and alternatives to proposed actions, they will make wise decisions about whether and how to proceed. The Freedom of Information Act and its state counterparts even more explicitly seek to open up governmental deliberations to the public. Considered together, these two types of laws would lead one to believe that secrecy has little …

Who Rules At Home: One Person/One Vote And Local Governments, Richard Briffault

Faculty Scholarship

Twenty-five years ago, in Avery v Midland County, the United States Supreme Court extended the one person/one vote requirement to local governments. Avery and subsequent decisions applying federal constitutional standards to local elections suggested a change in the legal status of local governments and appeared to signal a shift in the balance of federalism. Traditionally, local governments have been conceptualized as instrumentalities of the states. Questions of local government organization and structure were reserved to the plenary discretion of the states with little federal constitutional oversight. In contrast, Avery assumed that local governments are locally representative bodies, not simply …

The Item Veto In State Courts, Richard Briffault

Faculty Scholarship

Contemporary debates about state constitutional law have concentrated on the role of state constitutions in the protection of individual rights and have paid less attention to the state constitutional law of government structure.This is ironic since the emergence of a state jurisprudence of individual rights has been hampered by the similarity of the texts of the state and federal constitutional provisions concerning individual rights, whereas many state constitutional provisions dealing with government structure have no federal analogues, and thus state jurisprudence in this area is free to develop outside the dominating shadow of the Federal Constitution and the federal courts. …

Editing, Carol Sanger

Faculty Scholarship

In May 1993, I published a book review of Richard Posner's Sex and Reason. The review was modest in length and in purpose, part of an informal division of labor undertaken by the many critics of Sex and Reason. It challenged Judge Posner's claim that an economic analysis of sex was something new and argued that women have been making rational choices with regard to sex and reproduction for quite a long time, something that Judge Posner's book seemed to miss and misunderstand throughout.

Readers of the review (the members of my MCI Friends and Family Plan) have …

The Prospects Of Pension Fund Socialism, William H. Simon

Faculty Scholarship

A substantial portion of corporate shareholdings in the United States is held by pension funds that secure retirement benefits for broad segments of the workforce. A number of commentators have argued that the assets secured by these pension funds should be used to promote the creation of a more democratic and egalitarian economy. Specifically, pension assets could be invested in projects that are deemed socially worthwhile, wielded in strategic "corporate campaigns" against companies resisting unionization, or directed toward allowing workers to obtain control over their own companies. This program of employing pension assets in the pursuit of a more democratic …

Equality And Diversity: The Eighteenth-Century Debate About Equal Protection And Equal Civil Rights, Philip A. Hamburger

Faculty Scholarship

Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution. Long before the Fourteenth Amendment, however – long before even the 1830s …

The Political Economy Of Female Violent Street Crime, Deborah Baskin, Ira Sommers, Jeffrey A. Fagan

Faculty Scholarship

Ten years after the U.S. Attorney General's Task Force on Violent Crime considered problems of violence in the United States, and on the heels of a National Academy Sciences report on violence, the nation seems poised to begin a new "war on violence." Past "wars" on crime problems, including the recently stalemated "war on drugs" have focused primarily on males. This one promises to be no different. Violence continues to be viewed as the province of young males in urban areas. According to the Uniform Crime Reports, over 75% of homicide victims in 1990 were males, and over 85% of …

Natural Rights, Natural Law, And American Constitutions, Philip A. Hamburger

Faculty Scholarship

Natural rights and natural -law are ideas that frequently seem to have something in common with the elusive shapes of a Rorschach test. They are suggestive of well-defined, recognizable images, yet they are so indeterminate that they permit us to see in them what we are inclined to see. Like Rorschach's phantasm-inducing ink blots, natural rights and natural law are not only suggestive but also indeterminate – ideas to which each of us can plausibly attribute whatever qualities we happen to associate with them. For this reason, we may reasonably fear that natural rights and natural law are ideas often …

For Mert Bernstein, Inventor Of A Field, Lance Liebman

Faculty Scholarship

Life brings odd cycles and conjunctions.

More than twenty years ago, as a brand new law teacher, I was assigned by Dean Derek Bok to teach "urban law." I said, "Derek, what is that?" He said: "You have been Assistant to Mayor Lindsay of New York for two years. You figure it out."

Further Reflections On Libertarian Criminal Defense, William H. Simon

Faculty Scholarship

Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore especially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal defense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering.

The Political Economy Of The Wagner Act: Power, Symbol, And Workplace Cooperation, Mark Barenberg

Faculty Scholarship

To shed light on the legal debate over new forms of workplace collaboration, this Article reexamines the origins of the National Labor Relations Act of 1935. Professor Barenberg concludes that the Wagner Act scheme was profoundly cooperationist, not adversarial as is conventionally assumed. Revisionist historiography shows that, contrary to the claims of public choice theorists, Senator Wagner's network of political entrepreneurs was the decisive force in the conception and enactment of the new labor policy, amidst interest group paralysis and popular unrest. Drawing on original archival materials and oral histories, Professor Barenberg reconstructs the progressive ideology of Wagner and his …

Corrective Justice For Moderns, George P. Fletcher

Faculty Scholarship

Once when I was reading a Soviet commentary on criminal procedure, a friend noticed the cyrillic title and asked whether the Russian book was fiction or nonfiction. My initial tendency was to give the straight response, "Nonfiction, of course," but then I thought about what I was reading and began to laugh. Now if someone asked me whether Jules Coleman's Risks and Wrongs was fiction or nonfiction, I would want to give the straight reply. Thinking about the book, however, I hesitate. And I do not laugh.

It is becoming more and more difficult these days to distinguish fiction from …

Pluralism, The Prisoner's Dilemma, And The Behavior Of The Independent Judiciary, Thomas W. Merrill

Faculty Scholarship

Discussions of Thayer's conception of judicial review, as this symposium amply demonstrates, tend to be normative. Professor Nick Zeppos's paper, which offers more of a positive analysis, is therefore a welcome addition. Zeppos's paper includes three especially valuable insights. First, he demonstrates the close parallel between Thayer's theory of judicial review and the Supreme Court's Chevron doctrine. The former would have the judiciary enforce clear constitutional commands but otherwise defer to legislative understandings of constitutional meaning; the latter would have courts enforce clear legislative commands but otherwise defer to administrative interpretations of statutes. Second, he offers evidence that in both …

The Protective Power Of The Presidency, Henry Paul Monaghan

Faculty Scholarship

Walter Bagehot's still-admired study of the English Constitution distinguished between its "dignified" and "efficient" parts. Bagehot argued that the English Constitution's "dignified" theory of parliamentary supremacy masked the (then) dominant reality of cabinet government. Attacking what he described as the "literary" theory of the American Constitution, Woodrow Wilson posited a similar distinction. Writing in 1885, Wilson asserted that the "literary" theory of American government embodied in Federalist's "ideal checks and balances of the federal system" obscured its efficient principle: "government by the chairmen of the Standing Committees of Congress." An ardent admirer of ministerial government, Wilson especially lamented the condition …

The Mind In The Major American Law School, Lee C. Bollinger

Faculty Scholarship

Legal scholarship is significantly, even qualitatively, different from what it was some two or three decades ago. As with any major change in intellectual thought, this one is composed of several strands. The inclusion in the legal academic community of women and minorities has produced, not surprisingly, a distinctive and at times quite critical body of thought and writing. The emergence of the school of thought known as critical legal studies has renewed and extended the legal realist critique of law of the first half of the century. But more than anything else it is the interdisciplinary movement in legal …

A Vigil For Thurgood Marshall, Eben Moglen

Faculty Scholarship

Three days after his death, on January 27th, Thurgood Marshall came to the Supreme Court, up the marble steps, for the last time. Congress had ordered Abraham Lincoln's catafalque brought to the Court, and on it the casket of Thurgood Marshall lay in state. His beloved Chief, Earl Warren, had been so honored in the Great Hall of the Court, and no one else. Congress made the right decision about the bier, and it spoke with the voice of the people: no other American, of any age, so deserved to lie where Lincoln slept.

To him, all day on Wednesday, …

Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt

Faculty Scholarship

This Article addresses three perplexing problems about proposed principles of self-restraint for political decision and advocacy within liberal democracies. It considers the nature of convictions that are based on highly personal experiences and asks what their political status should be. It explores the subtle relationship between proposed principles of restraint and overarching religious and other comprehensive views. It argues that a plausible principle of restraint must appeal to people with various religious and other comprehensive views and must be suited to the particular conditions of a given society.

The Transformation Of Morton Horwitz, Eben Moglen

Faculty Scholarship

In 1977, Morton Horwitz published his astonishing first book, The Transformation of American Law, 1780-1860. Looking back, two things could be said of the reception of the Transformation: the book was subjected to extremely searching and ultimately quite successful criticism, while at the same time it dominated the field of American legal history for more than a decade, as no book had before, or has since. Like almost all other historians of American law trained in the years following 1977, my education in the craft of legal history was decisively affected by the Transformation. My first published work was a …

Blackmail: The Paradigmatic Crime, George P. Fletcher

Faculty Scholarship

The ongoing debate about the rationale for punishing blackmail assumes that there is something odd about the crime. Why, the question goes, should demanding money to conceal embarrassing information be criminalized when there is nothing wrong with the separate acts of keeping silent or requesting payment for services rendered? Why should an innocent end (silence) coupled with a generally respectable means (monetary payment) constitute a crime? This supposed paradox, however, is not peculiar to blackmail. Many good acts are corrupted by doing them for a price. There is nothing wrong with government officials showing kindness or doing favors for their …

Give Me Liberty Or Give Me Death: Political Asylum And The Global Persecution Of Lesbians And Gay Men, Suzanne B. Goldberg

Faculty Scholarship

In a time marked by dramatic global change, women and men persecuted because they are lesbian or gay form part of the growing pool of international refugees. Their persecution takes the form of police harassment an assault, involuntary institutionalization and electroshock and drug "treatments," punishment under laws that impose extreme penalties including death for consensual lesbian or gay sexual relations, murder by paramilitary death squads, and government inaction in response to criminal assaults against lesbians and gay men. The survival of these women and men, like the survival of all refugees, depends on obtaining asylum outside the home country. Yet, …

Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill

Faculty Scholarship

To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the …

Reel Time/Real Justice, Kimberlé W. Crenshaw

Faculty Scholarship

Like the Anita Hill/Clarence Thomas hearings a few months before, the Rodney King beating, the acquittal of the Los Angeles police officers who "restrained" him and the subsequent civil unrest in Los Angeles flashed Race across the national consciousness and the gaze of American culture momentarily froze there. Pieces of everyday racial dynamics briefly seemed clear, then faded from view, replaced by presidential politics and natural disasters.

This Essay examines in more depth what was exposed during the momentary national focus on Rodney King. Two main events – the acquittal of the police officers who beat King and the civil …

Chaos Theory And The Justice Paradox, Robert E. Scott

Faculty Scholarship

"[T]he laws have mistakes, and you can't go writing up a law for everything that you can imagine."

"When you reach an equilibrium in biology you're dead."

As we approach the Twenty-First Century, the signs of social disarray are everywhere. Social critics observe the breakdown of core structures – the nuclear family, schools, neighborhoods, and political groups. As these traditional social institutions have disintegrated, the law has expanded to fill the void. There are more laws, more lawyers, and more use of legal mechanisms to accomplish social goals than at any other time in history. The custodians and interpreters of …

Private Insurance, Social Insurance, And Tort Reform: Toward A New Vision Of Compensation For Illness And Injury, Kenneth S. Abraham, Lance Liebman

Faculty Scholarship

The United States does not have a system for compensating the victims of illness and injury; it has a set of different institutions that provide compensation. We rely on both tort law and giant programs of public and private insurance to compensate the victims of illness and injury. These institutions perform related functions, but the relationships among them are far from coherent. Indeed, the institutions sometimes work at cross-purposes, compensating some victims excessively and others not at all.

The absence of a coherent system of compensation is reflected even in suggested reforms of existing institutions. Proposals to reform tort law …

Understanding The Japanese Keiretsu: Overlaps Between Corporate Governance And Industrial Organization, Ronald J. Gilson, Mark J. Roe

Faculty Scholarship

We aim here for a better understanding of the Japanese keiretsu. Our essential claim is that to understand the Japanese system – banks with extensive investment in industry and industry with extensive cross-ownership – we must understand the problems of industrial organization, not just the problems of corporate governance. The Japanese system, we assert, functions not only to harmonize the relationships among the corporation, its shareholders, and its senior managers, but also to facilitate productive efficiency.