Law and Society Commons^™

Berle’S Vision Beyond Shareholder Interests: Why Investment Bankers Should Have (Some) Personal Liability, Claire Hill, Richard Painter

Seattle University Law Review

This essay, published in a symposium on the work of Adolf Berle, approaches the Berle-Dodd debate from the perspective that corporate managers have responsibilities beyond pursuing the interests of shareholders. Stock based executive compensation, designed to align managers’ interests with those of shareholders, has, in the investment banking industry in particular, failed to avert, and may have caused, managers (in this case, bankers) to take excessive risks that in the present financial crisis inflicted great damage on creditors and on society as a whole. We describe here the broad outlines of a proposal that we will discuss in future publications …

Enumerating Old Themes? Berle’S Concept Of Ownership And The Historical Development Of English Company Law In Context, Lorraine E. Talbot

Seattle University Law Review

This paper offers some tentative suggestions as to why Berle’s work has been read and interpreted so selectively in the United Kingdom. I suggest that this must be partly attributable to the historical developments in English company law that entrenched the notion of shareholder ownership claims. Specifically, unincorporated associations’ normative values—that members are owners and there is no distinction between small organizations with no share dispersal and large organizations with wide share dispersal—have a continuing influence on this entrenched notion of shareholder ownership claims. First, I provide an overview of the origins of English company law. Next, I address how …

Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert

Articles

Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered …

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

Articles

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that …

The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder

St. Mary's Law Journal

Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …

Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole

St. Mary's Law Journal

Safford Unified Sch. Dist. No. 1 v. Redding (Redding III) represents a pivotal decision in school search and seizure jurisprudence, specifically regarding strip searches of students. Redding III establishes constraints specific to strip searches on the search and seizure authority of school officials. Redding III is intended to provide a uniform test for the judiciary and school officials when evaluating the reasonableness of strip searches of students. The Court explicitly interposed a “reliable knowledge” element requiring: (1) the degree to which known facts imply prohibited conduct; (2) the specificity of the information received; and (3) the reliability of its source. …

A Few Inconvenient Truths About Michael Crichton's State Of Fear: Lawyers, Causes And Science, Lea B. Vaughn

Articles

Although Crichton has lost the battle regarding global warming, his characterization of lawyers and law practice remains unchallenged. This article challenges his damning portrait of lawyers as know-nothing, self-aggrandizing manipulators of various social and environmental causes. A more nuanced examination of "cause lawyering" reveals that lawyers are not part of a vast conspiracy to grab power through the causes for which many work; in fact, the rules of professional responsibility as well as the structure of "cause lawyering" limit their power and influence. Regardless, lawyers are nonetheless vital, and generally principled, participants in the debates and causes that inform environmental …

The Autobiography Of An Execution By David Dow, Nicole P. Dyszlewski

Law Faculty Scholarship

No abstract provided.

Informed Choices And Uniform Decisions: Adopting The Aba's Self-Enforcing Administrative Model To Ensure Successful Surrogacy Arrangements, Christine Metteer Lorillard

Cardozo Journal of Equal Rights & Social Justice

Non-traditional families are on the rise in America today, with more and more same-sex couples raising families together. Yet, all same-sex partners seeking to become parents must make use of some assisted reproductive technique ("ART'), as must some heterosexual married couples. Despite the growing number of people who want to create families, including those that resort to ARTs to have genetically-related children, there are significant moral, economic, and legal obstacles in their way. What has long been needed is a codified roadmap for a successful surrogacy agreement that delineates the rights and obligations of the parties involved, as well as …

Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy Ten Years After Bisexual Erasure, Heron Greenesmith

Cardozo Journal of Equal Rights & Social Justice

The article argues that bisexuality remains legally invisible, both in legal culture and jurisprudence, due to its inherent complexity and the reliance of legal arguments on a binary understanding of sexual orientation. It extends Kenji Yoshino's theory of bisexual erasure into the legal context, proposing that bisexuality is not just socially invisible but also legally inconspicuous. The analysis focuses on two main hypotheses: first, that bisexuality is inherently invisible to the law beyond deliberate erasure, and second, that where bisexuality is legally relevant, it complicates legal arguments that depend on the binary of sexuality. The article concludes by advocating for …

Racial Paradox In A Law And Society Odyssey, Mario L. Barnes

Articles

No abstract provided.

A Post-Race Equal Protection?, Mario L. Barnes, Erwin Chemerinsky, Trina Jones

Articles

No abstract provided.

Economically Benevolent Dictators: Lessons For Developing Democracies, Ronald J. Gilson, Curtis J. Milhaupt

Faculty Scholarship

The post-war experience of developing countries leads to two depressing conclusions: only a small number of countries have successfully developed; and development theory has not produced development. In this article we examine one critical fact that might provide insights into the development conundrum: Some autocratic regimes have fundamentally transformed their economies, despite serious deficiencies along a range of other dimensions. Our aim is to understand how growth came about in these regimes, and whether emerging democracies might learn something important from these experiences.

Our thesis is that in these economically successful countries, the authoritarian regime managed a critical juncture in …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

Abstract in Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – …

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Faculty Scholarship

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …

Pregnant Man: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth Emens, Berta E. Hernandez-Truyol,, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

Go West Young Woman!: The Mercer Girls And Legal Historiography, Kristin Collins

Faculty Scholarship

This essay is a response to Professor Kerry Abrams’s article The Hidden Dimension of Nineteenth-Century Immigration Law, published in Vanderbilt Law Review. The Hidden Dimension tells the story of Washington Territory’s entrepreneurial Asa Shinn Mercer, who endeavored to bring hundreds of young women from the East Coast to the tiny frontier town of Seattle as prospective brides for white men who had settled there. Abrams locates the story of the Mercer Girls, as they were called, in the history of American immigration law. My response locates The Hidden Dimension in American legal historiography, both that branch of American legal historiography …

Activating Systemic Change Toward Full Participation: The Pivotal Role Of Boundary Spanning Institutional Intermediaries, Susan Sturm

Faculty Scholarship

Racial and social justice advocacy is in an era of transition. Race continues to permeate people's lives and to structure the social and economic hierarchy, but often in complicated ways that elude bright line categories. Disparities frequently result from cognitive bias, unequal access to opportunity networks, and other structural dynamics, rather than from intentional exclusion. For example, disparities in access to higher education persist as a result of differences in access, information, resources, networks, and evaluation, which give rise to achievement differentials at each critical turning point affecting successful advancement. These differences accumulate to produce substantial disparities in college participation …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Regulating Polygamy: Intimacy, Default Rules, And Bargaining For Equality, Adrienne D. Davis

Scholarship@WashULaw

Most legal scholarship about polygamy has approached it in one of two ways. Some have framed it as a question of how far constitutional protection for religious freedom and privacy rights extends, including what we might think of as “intimacy liberty,” particularly in light of Lawrence v. Texas. Others have debated decriminalization, based on the contested effects of polygamy on matters ranging from women’s subordination to fraudulent behavior to democracy. This Essay shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social …

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

Hoffman V. Red Owl Stores And The Limits Of The Legal Method, Robert E. Scott

Faculty Scholarship

According to the overwhelming majority view, promissory estoppel is not an appropriate ground for legally enforcing statements made during preliminary negotiations unless there is a “clear and unambiguous promise” on which the counterparty reasonably and foreseeably relies. Bill Whitford and Stewart Macaulay were among the first scholars to note the apparent absence of such a promise in the case of Hoffman v. Red Owl Stores. Several years ago, after studying the trial record, I concluded that the best explanation for the breakdown in negotiations was the fundamental misunderstanding between the parties as to the amount and nature of Hoffmann’s …

Japan's New Clinical Programs: A Study Of Light And Shadow, Peter A. Joy, Shigeo Miyagawa, Takao Suami, Charles D. Weisselberg

Scholarship@WashULaw

Japan instituted a new system of graduate professional law school education when sixty-eight new law schools opened their doors on April 1, 2004. The new law schools are an integral component of far-reaching reforms that seek to improve the administration of justice in Japan by increasing the number of lawyers, especially in grossly underserved rural areas, and better preparing attorneys for the practice of law domestically and internationally. Japan modeled the new graduate professional law schools after schools in the United States. A large number of the schools adopted clinical legal education programs -- also substantially influenced by law school …

Price And Pretense In The Baby Market, Kimberly D. Krawiec

Faculty Scholarship

Throughout the world, baby selling is formally prohibited. And throughout the world babies are bought and sold each day. As demonstrated in this Essay, the legal baby trade is a global market in which prospective parents pay, scores of intermediaries profit, and the demand for children is clearly differentiated by age, race, special needs, and other consumer preferences, with prices ranging from zero to over one hundred thousand dollars. Yet legal regimes and policymakers around the world pretend that the baby market does not exist, most notably through prohibitions against “baby selling” – typically defined as a prohibition against the …

The Endogeneity Problem In Cost-Benefit Analysis, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Cost-benefit analysis, an important technique in American public sector decision-making, is used to assess policies through aggregating the estimated willingness to pay of the affected persons to enjoy the benefits or avoid the burdens of those policies. Such analyses are generally based on the implicit simplifying assumptions that both the preferences of existing persons and the genetic identities of the persons who will comprise future generations are exogenous with respect to that policy. If, however, some persons’ preferences are endogenous in that they are altered by a policy, which is often the case, then this exogenous preferences assumption will introduce …

Charity And Information: Correcting The Failure Of A Disjunctive Social Norm, Brian Broughman, Robert Cooter

Articles by Maurer Faculty

Charitable donations fund social goods that the state and markets undersupply. Despite widespread belief in the importance of private charity, most Americans donate little or nothing. Experiments in behavioral economics show that anonymity, not human nature, causes low contributions. Anonymity poses a particular challenge for charity because of the special character of the obligation. Charity is a disjunctive social norm, meaning the obligation is owed to ‘A or B or C or …’. Disclosure of each individual’s aggregate conduct is necessary for the effectiveness of any disjunctive social norm. To revitalize charity we propose a public registry where each taxpayer …

Killing, Letting Die, And The Case For Mildly Punishing Bad Samaritanism, Ken Levy

Georgia Law Review

For over a century now, American scholars(among others) have been debating the merits of "bad-Samaritan" laws-laws punishing people for failing to attempt "easy rescues." Unfortunately, the opponents of bad-Samaritan laws have mostly prevailed. In the United States, the "no-duty-to-rescue" rule dominates. Only four states even have bad-Samaritan laws, and these laws impose only the most minimal punishment-either sub-$500 fines or short-term imprisonment. This Article argues that this situation needs to be remedied. Every state should criminalize bad Samaritanism. For, first, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against …