Law Commons^™

Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.

Faculty Scholarship

What do we know after Enron's implosion that we did not know before it? The conventional wisdom is that the Enron debacle reveals basic weaknesses in our contemporary system of corporate governance. Perhaps, this is so, but where is the weakness located? Under what circumstances will critical systems fail? Major debacles of historical dimensions – and Enron is surely that – tend to produce an excess of explanations. In Enron's case, the firm's strange failure is becoming a virtual Rorschach test in which each commentator can see evidence confirming what he or she already believed.

A Broken System, Part Ii: Why There Is So Much Error In Capital Cases And What Can Be Done About It, James S. Liebman, Jeffrey A. Fagan, Andrew Gelman, Valerie West, Garth Davies, Alexander Kiss

Faculty Scholarship

There is growing awareness that serious, reversible error permeates America’s death penalty system, putting innocent lives at risk, heightening the suffering of victims, leaving killers at large, wasting tax dollars, and failing citizens, the courts and the justice system.

Our June 2000 Report shows how often mistakes occur and how serious it is: 68% of all death verdicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors.

Analyses presented for the first time here reveal that 76% of the reversals at the two appeal stages where data are available for study were …

Something To Remember, Something To Celebrate: Women At Columbia Law School In, Barbara Aronstein Black

Faculty Scholarship

In this issue the Columbia Law Review joins in the celebration the 75th anniversary of the admission of women to the Columbia Law School. I am grateful to the editors of the Review for inviting me to contribute, and for the open-endedness of the invitation (or, in other words, what follows is my fault, not theirs). This has been an opportunity for me to do some research, some recalling and some reflection (and to tell a few stories). My research is incomplete, one might say sketchy, but I trust reliable as far as it goes. My recollections may well not …

Natural Law And Public Reasons, Kent Greenawalt

Faculty Scholarship

In this Lecture I shall discuss the reasons that officials and citizens should rely upon in American politics. In recent years, various theorists have claimed that people in liberal democracies should rely in politics on "public reasons," reasons that are accessible to all citizens. Others have objected that such a counsel is unreasonable, if not incomprehensible. I shall concentrate on two facets of this issue. First, does the law exemplify a structure of public reasons – that is, do judges deciding cases draw on a stock of public reasons that is narrower than all the reasons one might give for …

Unifying Commercial Law In The New Century, Lance Liebman

Faculty Scholarship

I join enthusiastically in the applause for Fred Miller's service as Executive Director of the National Conference of Commissioners on Uniform State Laws (NCCUSL). Without question, Fred is the outstanding contemporary embodiment of the passion that led fifty years ago to the achievement of a uniform commercial law among the American states. His work serves a worthy cause, and the American Law Institute (ALI) is proud to have been a partner in the venture and to have played its appropriate instruments in the orchestra that Fred has been conducting.

That said, and Fred's integrity, intelligence, and steadfastness appropriately noted, it …

Law Enforcement Under Incomplete Law: Theory And Evidence From Financial Market Regulation, Chenggang Xu, Katharina Pistor

Faculty Scholarship

This paper studies the design of law-making and law enforcement institutions based on the premise that law is inherently incomplete. Under incomplete law, law enforcement by courts may suffer from deterrence failure, defined as the social-welfare loss that results from the regime's inability to deter harmful actions. As a potential remedy a regulatory regime is introduced. The major functional difference between courts and regulators is that courts enforce law reactively, that is only once others have initiated law enforcement procedures, while regulators enforce law proactively, i.e. on their own initiative. Proactive law enforcement may be superior in preventing harm. However, …

The First Decade: Critical Reflections, Or "A Foot In The Closing Door", Kimberlé W. Crenshaw

Faculty Scholarship

In the introduction to Critical Race Theory: The Key Writings That Formed the Movement, Gary Peller, Neil Gotanda, Kendall Thomas, and I framed the development of Critical Race Theory (CRT) as a dialectical engagement with liberal race discourse and with Critical Legal Studies (CLS). We described this engagement as constituting a distinctively progressive intervention within liberal race theory and a race intervention within CLS. As neat as this sounds, it took almost a decade for these interventions to be fleshed out fully. Reflecting on the past ten years of CRT, this Article explores the course of these interventions from the …

Economic Development, Competition Policy, And The World Trade Organization, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

At the recent WTO ministerial meeting in Doha, Qatar, WTO members called for the launch of negotiations on disciplines relating to competition, on the basis of explicit consensus on modalities to be agreed at the 5th WTO ministerial in 2003. Discussions in WTO since 1997 have revealed little support for ambitious multilateral action. Proponents of WTO antitrust disciplines currently propose an agreement that is limited to ‘core principles’ – nondiscrimination, transparency, and provisions banning ‘hard core’ cartels. We argue that an agreement along such lines will create compliance costs for developing countries while not addressing the anticompetitive behavior of firms …

Thirteen Ways Of Looking At The Law, Bert I. Huang

Faculty Scholarship

I was of three minds
Like a tree
In which there are three blackbirds.

The emergence of external disciplines within legal scholarship seems to have fractured its intellectual focus. Technical and specialized academic writing, moreover, appears to be drifting ever farther from the theaters of legal action. Judge Richard Posner's latest book of essays, Frontiers of Legal Theory, challenges such perceptions: Even as it celebrates the breadth of interdisciplinary legal scholarship, it seeks coherence among myriad methodologies. Even as it delights in the abstract constructs of social science, it emphasizes their practical impact. And as one might expect of Judge …

For My Friend, Philip Chase Bobbitt

Faculty Scholarship

Auden wrote somewhere that a friend is simply someone of whom, in his absence, one thinks with pleasure. How do we measure that against Dante’s famous observation that there is no greater pain than to remember happy days in days of sorrow? They are both right, are they not? I cannot think of my first memory of Charles without smiling even though all afternoon my throat has ached with the strain of suppressed anguish at the loss of him. “Memory is all that the death of such a man leaves us.”

Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt

Faculty Scholarship

The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.

The Rise And Fall Of Article 2, Robert E. Scott

Faculty Scholarship

In August 13,2001 the National Conference of Commissioners on Uniform State Laws voted eighty-nine to fifty-three to reject the Amendments to Article 2 of the Uniform Commercial Code that had just been approved in May by the American Law Institute. The vote followed a last minute effort by the Article 2 drafting committee to amend the scope provisions of Article 2 in response to continuing criticism from representatives of the software and information industries. Several months later, at the request of the NCCUSL leadership, amended Article 2 with its revised scope provision was withdrawn from the agenda of the ALI …

Discretion In Long-Term Open Quantity Contracts: Reining In Good Faith, Victor P. Goldberg

Faculty Scholarship

Long-term contracts often promise to deliver the seller's full output, the buyer's requirements, or some variation on these. For example, an electric utility might enter into a thirty year contract with a coal mine promising that it will take all the coal needed to supply a particular generating plant. These open quantity contracts have raised two issues. The first is whether the promise was illusory. If the utility had no duty to take any coal, a court could have found that there was no consideration and, therefore, no contract. While there was a time when full output and requirements contracts …

On Making Anti-Essentialist And Social Constructionist Arguments In Courts, Suzanne B. Goldberg

Faculty Scholarship

One of my most intense disagreements with another lawyer during nearly a decade of lesbian and gay rights litigation concerned social constructionism. The lawyer (a law professor, if truth be told) wanted to argue in an amicus brief to the United States Supreme Court that sexual orientation, like race, was a social constructed category. He reasoned that since the Court had condemned race discrimination even while recognizing the "socio-political, rather than biological" nature of race, it would similarly be willing to invalidate a measure discriminating against lesbians, gay men and bisexuals, even while recognizing the socially constructed nature of sexual …

On The Demise Of Shareholder Primacy ( Or, Murder On The James Trains Express), Eric Talley

Faculty Scholarship

The hypothetical introduced by Vice Chancellor Leo Strine's Essay exposes an important arena of corporate governance where adherence to the traditional norm of "shareholder primacy" is particularly troublesome. In fact, it is hard to find an analogous domain of corporate governance law that is as jarringly discontinuous as that found in the factual circumstances suggested by Strine's hypothetical. Explicitly, the legal scrutiny accorded to managers who resist a hostile acquisition depends critically on whether a court invokes the Revlon doctrine or the Unocal doctrine as the appropriate governing standard. Under the former (and its progeny), shareholder primacy arguments carry …

Lawyers And The Practice Of Workplace Equity, Susan Sturm

Faculty Scholarship

Lawyers involved in the pursuit of workplace equity are difficult to pigeon-hole. Of course, the practice of many employment lawyers conforms to conventional understandings of lawyers' roles. These lawyers litigate cases on behalf of management or employees, advise clients about their legal rights and obligations, and define their mission as avoiding liability or winning battles in court.But innovators have crafted interesting and dynamic roles that transcend the traditional paradigm. These innovators connect law, as it is traditionally understood, to the resolution of the underlying problems that create and maintain workplace inequity. Civil rights lawyers working in both public and private …

Constructing The Practices Of Accountability And Professionalism: A Comment On In The Interests Of Justice, Susan Sturm

Faculty Scholarship

In the Interests of Justice: Reforming the Legal Profession lives up to its ambitious title. Deborah Rhode comprehensively surveys the structural problems confronting the legal profession, from its subscription to the "sporting theory of justice" to its preoccupation with profit. The book also lays bare the failure of legal education and the professional regulatory system to confront the roots of these structural problems.

I must confess that reading the book felt like a whirlwind tour of the legal profession's inevitable problems. In part, this perception grew out of the sheer range of economic, institutional, and structural factors contributing to the …

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention Court …

Bush V. Gore As An Equal Protection Case, Richard Briffault

Faculty Scholarship

In Bush v. Gore, the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote – that is, ballots that vote-counting machinery had found contained no indication of a vote for President – which the Florida Supreme Court had ordered to determine the winner of Florida's vote for presidential electors in the 2000 presidential election. The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court's …

The Community Economic Development Movement, William H. Simon

Faculty Scholarship

Within a five-minute walk of the Stony Brook subway stop in the Jamaica Plain section of Boston, you can encounter the following:

• A renovated industrial site of about five acres and sixteen buildings that serves as a business incubator for small firms that receive technical assistance from the Jamaica Plain Neighborhood Development Corporation (JPNDC), a nonprofit community development corporation, which is also housed there. Known as the Brewery after its former proprietor, a beer-maker, the complex is owned by a nonprofit subsidiary of JPNDC.
• A 44,000-foot "Stop & Shop" supermarket. The market opened in 1991 after years in which the …

Smart Growth And American Land Use Law, Richard Briffault

Faculty Scholarship

The smart growth movement that emerged in the late 1990's seeks to change the way Americans think about growth, development, and urban planning. From a legal perspective, smart growth directly challenges several fundamental aspects of American land use law.

Substantively, smart growth attacks two goals that have been hallmarks of American land use law for more than three-quarters of a century: (1) decongestion, that is, reducing population density and dispersing residents over wider areas; and (2) the separation of different land uses from each other. Both decongestion and separation of uses were enshrined in the Standard Zoning Enabling Act …

The Contested Right To Vote, Richard Briffault

Faculty Scholarship

For those who believe the United States is a representative democracy with a government elected by the people, the events of late 2000must have been more than a little disconcerting. In the election for our most important public office – our only truly national office – the candidate who received the most popular votes was declared the loser while his second place opponent, who had received some 540,000 fewer votes, was the winner. This result turned on the outcome in Florida, where approximately 150,000 ballots cast were found not to contain valid votes. Further, due to flaws in ballot design, …

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …

Parallel Lives: Women's Rights And Lesbian Rights Litigation, Suzanne B. Goldberg

Faculty Scholarship

I love the title of this panel because it gave me a chance to think about the historical themes and emerging issues in law related to women's rights, which of course is a mere endless set of possibilities.

I spent much of the last decade doing lesbian and gay civil rights litigation, and the question that I will focus on today grows out of that work and is a comparative one or at least a relational one. The question is this: What is the relationship between women's rights litigation as it has evolved in the last thirty years and lesbian …

Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman

Faculty Scholarship

Innocent fatalities are a concern of all social activity with a capacity to kill. This is especially true when the social activity is the death penalty since an innocent person's execution is not simply a tragic collateral consequence of activity with a non-fatal objective. Instead, the taking of life is the goal of the enterprise, and the killing is the intended act of the state.

There is another difference between accidental fatalities in other social activities and those that occur when the capital system miscarries. Typically, the former fatalities are easy to spot and quantify; the latter are not. Precisely …

Racial Profiling Under Attack, Samuel R. Gross, Debra A. Livingston

Faculty Scholarship

The events of September 11, 2001, have sparked a fierce debate over racial profiling. Many who readily condemned the practice a year ago have had second thoughts. In the wake of September 11, the Department of Justice initiated a program of interviewing thousands of men who arrived in this country in the past two years from countries with an al Qaeda presence – a program that some attack as racial profiling, and others defend as proper law enforcement. In this Essay, Professors Gross and Livingston use that program as the focus of a discussion of the meaning of racial profiling, …

Women Imagining Justice, Katherine M. Franke

Faculty Scholarship

I'm enormously honored to be here with such an impressive group of women interested in the complex question of Women, Justice, and Authority. Thanks to Judith Resnik and Mary Clark and the students working with them for all their hard work in putting this outstanding weekend together.

The five of us are charged with the unenviable task of "Imagining Justice," a task not significantly less daunting than, say, imagining truth, humor, or community. In preparation for this afternoon, I've been in my office or in the subway trying to imagine justice and after some time, was horrified when I discovered …

Endowment Effects Within Corporate Agency Relationships, Jennifer H. Arlen, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

Behavioral economics is an increasingly prominent field within corporate law scholarship. A particularly noteworthy behavioral bias is the "endowment effect" – the observed differential between an individual's willingness to pay to obtain an entitlement and her willingness to accept to part with one. Should endowment effects pervade corporate contexts, they would significantly complicate much common wisdom within business law, such as the presumed optimality of ex ante agreements. Existing research, however, does not adequately address the extent to which people manifest endowment effects within agency relationships. This article presents an experimental test for endowment effects for subjects situated in an …

Erwin Griswold's Tax Law – And Ours, Michael J. Graetz

Faculty Scholarship

It is a pleasure for me to be here today to deliver the Erwin N. Griswold Lecture. And it is an honor to follow those who have graced this lectern before me. They include important mentors to me. Several are close friends. Today, we are in a quiet interlude awaiting the next serious political debate about restructuring the nation's tax system. No fundamental tax policy concerns are at stake in the current disputes over economic stimulus or in the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments are concerned …

Illegalized Sexual Dissent: Sexualities And Nationalisms, Katherine M. Franke

Faculty Scholarship

In this essay, Katherine Franke explores how dissent becomes a different, and in some ways more interesting, phenomenon when the dissenter emerges not from outside the political horizon drawn by the state, but rather from within it, and as an integral part of the state's project of governance. In these cases, the state calls up a set of subjects who are in some fundamental sense positioned to gain state, if not public, disfavor. These subjects are then isolated, excised or otherwise managed in ways that further state interests. Three cases are discussed in which the production of sexual outlaws proves …