Law Commons^™

High Brow, Lee C. Bollinger

Faculty Scholarship

Terry Sandalow has an extraordinary mind, its power suggested by his incredible brow and forehead. (I'm always reminded, in fact, of Melville's description of the massive size of the sperm whale's head as representing its huge intelligence.) By any measure, Terry is very smart, broadly educated, and deeply sensitive to the nuances of life. From my earliest days on the law faculty, I remember being continually impressed, at faculty discussions and seminars, by his illuminating questions and comments and aware of his reputation among students as one of the most intellectually challenging teachers. Colleagues routinely sought his advice and criticism …

The Role Of Letters Of Credit In Payment Transactions, Ronald J. Mann

Faculty Scholarship

Common justifications for the use of the letter of credit fail to explain its widespread use. The classic explanation claims that the letter of credit provides an effective assurance of payment from a financially responsible third party. In that story, the seller – a Taiwanese clothing manufacturer, for example – fears that the overseas buyer – Wal-Mart – will refuse to pay once the goods have been shipped. Cross-border transactions magnify the concern, because the difficulties of litigating in a distant forum will hinder the manufacturer's efforts to force the distant buyer to pay. The manufacturer-seller solves that problem by …

On The Use Of Practitioner Surveys In Commercial Law Research: Comments On Daniel Keating's Exploring The Battle Of The Forms In Action, Avery W. Katz

Faculty Scholarship

As Daniel Keating's principal article attests, the literature on U.C.C. section 2-207 and the "battle of the forms" is both vast and intricate. That fact, together with the distinguished array of commentators assembled here, makes it unlikely that I will be able to say anything substantially original on that subject. Accordingly, in the spirit of this overall symposium, I will focus the bulk of my remarks not on the substantive issues raised by Keating's article, but on his methodology. In particular, I will suggest that Keating's empirical method – the free-form, oral interview conducted personally by the principal researcher – …

Informality As A Bilateral Assurance Mechanism: Comments On Ronald Mann's The Role Of Letters Of Credit In Payment Transactions, Avery W. Katz

Faculty Scholarship

Ronald Mann's study of documentary defects in the presentation of commercial letters of credit1 is a valuable contribution to the commercial law literature in at least three respects. First, it offers a detailed and thorough empirical survey of an important though specialized aspect of commercial practice. Mann collected and coded a data sample of 500 randomly selected letter-of-credit transactions, personally evaluating each transaction to determine whether the documentary presentation by the beneficiary of the letter of credit (i.e., the seller) complied with the letter's formal terms. Then, for each case in which he found one or more documentary defects, Mann …

Revaluing Restitution: From The Talmud To Postsocialism, Michael A. Heller, Christopher Serkin

Faculty Scholarship

Whatever happened to the study of restitution? Once a core private law subject along with property, torts, and contracts, restitution has receded from American legal scholarship. Few law professors teach the material, fewer still write in the area, and no one even agrees what the field comprises anymore. Hanoch threatens to reverse the tide and make restitution interesting again. The book takes commonplace words such as "value" and "gain" and shows how they embody a society's underlying normative principles. Variations across cultures in the law of unjust enrichment reflect differences in national understandings of sharing, property, and even personhood. As …

Moral Icons: A Comment On Steven Lubet's Reconstructing Atticus Finch, William H. Simon

Faculty Scholarship

Atticus Finch's conduct would have been justified by the bar's conventional norms even if he had known Tom Robinson to be guilty. That fact, however, is not the source of the admiration for him that To Kill a Mockingbird has induced in so many readers. That admiration depends on the clear premise of the novel that Finch plausibly believes that Tom Robinson is innocent. Thus, the bar's invocation of Finch as a sympathetic illustration of its norms is misleading. The ethics of the novel are quite different from those of the bar.

Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard Harcourt

Faculty Scholarship

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …

The Political Economy Of Statutory Reach: U.S. Disclosure Rules In A Globalizing Market For Securities, Merritt B. Fox

Faculty Scholarship

This Article addresses the appropriate reach of the U.S. mandatory securities disclosure regime. While disclosure obligations are imposed on issuers, they are triggered by transactions: the public offering of, or public trading in, the issuers' shares. Share transactions are taking on an increasingly transnational character. The barriers to a truly global market for equities continue to lessen: financial information is becoming increasingly globalized and it is becoming increasingly inexpensive and easy to effect share transactions abroad. There are approximately 41,000 issuers of publicly traded shares in the world. For an ever larger portion of these issuers, there will be significant …

The Erotic Of Torts, Carol Sanger

Faculty Scholarship

"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist ... that ... do[es] not respect the line between the intellectual and the sexual" (p. 12). Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means – and what its implications are for …

The Folklore Of Investor Capitalism, John C. Coffee Jr.

Faculty Scholarship

Ideally, Thurman Arnold should review this book. In his The Folklore of American Capitalism, Arnold dissected the ideology and rationalizations by which the business community of an earlier day defended its legitimacy and perquisites. Michael Useem, a sociologist at the Wharton School, also has an interest in the ideology of the business community: how corporate managers view the new institutional investors, how they justify resistance, and the tensions and inconsistencies between their critiques of money managers and their own behavior. This is an underutilized perspective (which law and economics inherently tends to overlook), and Useem is at his best …

Strategy And Force In The Liquidation Of Secured Debt, Ronald J. Mann

Faculty Scholarship

The question of why parties use secured debt is one of the most fundamental questions in commercial finance. The commonplace answer focuses on force: A grant of collateral to a lender enhances the lender's ability to collect its debt by enhancing the lender's ability to take possession of the collateral by force and sell it to satisfy the debt. That perspective draws considerable support from the design of the major legal institutions that support secured debt: Article 9 of the Uniform Commercial Code and the less uniform state laws regarding real estate mortgages.

Both of those institutions are designed solely …

Securities Disclosure In A Globalizing Market: Who Should Regulate Whom, Merritt B. Fox

Faculty Scholarship

One of the most dramatic examples of increasing interaction across national boundaries in recent years has been the burgeoning volume of transnational transactions in corporate equities. Most developed capitalist countries impose affirmative obligations on issuers of corporate equity to disclose certain information about themselves. While these obligations are imposed on issuers, they are triggered by transactions. The growth in transnational transactions is thus increasingly raising difficult issues concerning the reach of differing national regimes. Given the magnitude of legal resources devoted to compliance with such disclosure regulations, they promise to feature prominently in the larger discussion of the role of …

Positivism And The Separation Of Law And Economics, Avery W. Katz

Faculty Scholarship

The modem field of law and economics – that is, the application of economic analysis to legal subjects other than trade and business regulation – is now over thirty years old, but it remains controversial in the legal academy and, to a lesser extent, in the profession at large. Since its beginnings in the early 1960s, the economic approach has provoked substantial opposition and antagonism. The sources of this resistance, however, are a matter of dispute. Many economists and economically influenced lawyers attribute it to more traditional lawyers' reluctance to learn a new and unfamiliar set of concepts and techniques. …

A Tribute To Jerry Israel: A Friend With A Messy Office, Debra A. Livingston

Faculty Scholarship

My legal education began with Jerry Israel.

During the fall of 1977, I was assigned to his section of Criminal Law. From the very first day of class, Jerry made it clear to us that the problems of crime and punishment were at once profoundly important and elusively difficult. Jerry taught from judicial opinions in the classic Socratic mode. Each day we were forced to grapple with the perplexing manner in which the language of precedent, so comforting when first encountered in the frame of an opinion, turned to quicksilver when tested against new cases, real or hypothetical.

Faculty Spotlight - Kyle D. Logue, Kyle D. Logue

Articles

Most of my teaching and research efforts are currently spent in two general fields of law - taxation and insurance. Which raises an interesting question: Why would a rational person decide to devote a good portion of his academic career to areas of law that many people - lawyers and nonlawyers alike - find painfully boring and unreasonably complicated? The ta and insurance lawyers in the audience, of course, already know the answer - that ta ation and insuran e are e ceptionally interesting topics and that, if one wants to understand how the real world works (in particular, the …

War Powers: An Essay On John Hart Ely's War And Responsibility: Constitutional Lessons Of Vietnam And Its Aftermath, Philip Chase Bobbitt

Faculty Scholarship

I approached John Ely's' new book with the anticipation of delight, qualified by a certain apprehensiveness. Delight because Ely is almost alone among writers in my solemn field in his ability to write with humor; indeed, he writes in a style that reminds me of the marvelous Joseph Heller. There is no reason, I suppose, for constitutional law professors to be incapable of writing amusing and fresh prose or exposing a false syllogism with the light touch of juxtaposition rather than the heavy bludgeon of irony, but how rare this is! More importantly, Ely's arguments have the satisfying feel of …

Brutality In Blue: Community, Authority, And The Elusive Promise Of Police Reform, Debra A. Livingston

Faculty Scholarship

In January 1994, President Clinton invited Kevin Jett, a thirtyone-year-old New York City police officer who walks a beat in the northwest Bronx, to attend the State of the Union Address. Jett stood for Congress's applause as the President called for the addition of 100,000 new community police officers to walk beats across the nation. The crime problem faced by Officer Jett and community police officers like him, the President said, has its roots "in the loss of values, the disappearance of work, and the breakdown of our families and communities." According to the Clinton administration, however, the police – …

Insider Trading Deterrence Versus Managerial Incentives: A Unified Theory Of Section 16(B), Merritt B. Fox

Faculty Scholarship

Part I of this article assesses the social costs of a crude rule of thumb. Because section 16(b) applies to a given class of paired transactions, it deters both transactions based on inside information and transactions not so based. Each time section 16(b) is stretched to include a class of paired transactions, it deters some additional innocent transactions. This side effect will take the form of officers' and directors' purchasing fewer shares in their own companies and refusing to accept as large a portion of their compensation in a form based on share price. There are strong theoretical and empirical …

Hail Britannia?: Institutional Investor Behavior Under Limited Regulation, John C. Coffee Jr., Bernard S. Black

Faculty Scholarship

A central puzzle in understanding the governance of large American public firms is why most institutional shareholders are passive. Why would they rather sell than fight? Until recently, the Berle-Means paradigm – the belief that separation of ownership and control naturally characterizes the modern corporation – reigned supreme. Shareholder passivity was seen as an inevitable result of the scale of modern industrial enterprise and of the collective action problems that face shareholders, each of whom owns only a small fraction of a large firm's shares.

A paradigm shift may be in the making, however. Rival hypotheses have recently been offered …

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Faculty Scholarship

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

Eleonora V. Eckert, Kent D. Syverud, Gregory P. Magarian, Christina B. Whitman, Rodney D. Martin

Michigan Law Review

Tributes to Eleonora V. Eckert

A Morality Fit For Humans, Joseph Raz

Faculty Scholarship

I believe that it was opposition to utilitarianism which first bred arguments claiming in one way or another that a view of morality according to which morality is very demanding is mistaken just be-cause morality cannot be so demanding. On first hearing, this type of argument is liable to seem suspect. Humans should be fit for morality, and unfortunately too often they are not – one is inclined to say. If we find morality too demanding the fault is with us and not with morality. The idea of human morality, in the sense of a morality fit for humans …

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 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 …

Eleonora V. Eckert, Christina B. Whitman

Articles

One day, relatively early in my term as Editor-in-Chief of the Michigan Law Review, Ele Eckert came to me with a draft of a student note that had been given to our secretary for typing. The secretary had turned to Ele in despair. Page after page of yellow legal paper had been filled with minuscule pencil scratches and then elaborately decorated with even more minuscule additions and emendations. Red lines and blue lines and green lines, overlapping each other and occasionally blurring together, wove in and out among the pencil scratches. I asked the editor who had produced this colorful, …

The Ethics Of Criminal Defense, William H. Simon

Faculty Scholarship

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

Zero-Sum Madison, Thomas W. Merrill

Faculty Scholarship

Has the fabric of American constitutional law been permanently "distorted" by the Framers' preoccupation with protecting private property against redistribution? Jennifer Nedelsky thinks so. In this provocative study of how the idea of property shaped the political thought of the Framers and the institutions they designed, she argues that James Madison's constitutional philosophy was driven by fear that a future propertyless majority would seek to expropriate the holdings of a minority. To combat this danger, Madison sought to create a structure of government that would ensure the dominance of the propertied elite. Madison's obsessive fear of redistribution spread to the …

The Meaning Of Dissent, Lee C. Bollinger

Faculty Scholarship

There is, and has always been, an abiding tension in first amendment theory. At times, freedom of speech is conceived as having a very practical purpose – as implementing a system designed for yielding truth, or good public policy. Thus, Zechariah Chafee wrote that the first amendment protects the "social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way," and Alexander Meiklejohn spoke frequently of the first amendment as a practical plan for a self-governing society, engendering "wise decisions." This vision of …

Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Faculty Scholarship

Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives and from the constitutional perspectives of separation of powers. His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our sprawling …

The Strategic Structure Of Offer And Acceptance: Game Theory And The Law Of Contract Formation, Avery W. Katz

Faculty Scholarship

The purpose of this article is to promote a particular research program; namely, the use of game theory to analyze the law of contract formation. Although I will often simply speak of offer and acceptance in my discussion, I mean to refer to a broader set of issues than are commonly denoted by this doctrinal label. My program transcends the narrow issue of whether particular communications technically should be classified as offers and acceptances, and includes questions often analyzed under the rubrics of implication and interpretation. At its broadest, my argument addresses all legal rules that answer two types of …