Faculty Bibliography
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The attached paper is a draft of the concluding chapter in a book about religion in relation to other social systems (governments, economic markets, and secular social groups and entities). Prior chapters reviewed multiple theories and many empirical studies, as well as social-science scholarship, bearing on the relative advantages and costs of the four types of systems as they attempt to provide multiple kinds of benefits for human individuals and groups. The attached table of contents may give a more concrete sense of those inquires. A general theme that emerged was that the four systems not only have relative advantages and disadvantages that vary by type of benefit or cost, but also by specific context and over time, as there are changes in external factors like social scale and technological developments. Some general trends are identified in the prior chapters. The final chapter is deliberately cast as a reflective essay. It speculates about the future of religion over the next several centuries (e.g., to the year 2500), and identifies three categories of predictions: virtually complete decline; fluctuating endurance; and morphological evolution. It then considers high-level arguments for and against them. For example: (1) The virtually complete secularization model seems supported by trends in some advanced economies, e.g., in western Europe and more recently in the US, by reflection on efficiency improvements in the other social systems, and by arguments about the impact of science and reason on religious beliefs. But the better and more comprehensive global demographic evidence indicates a very different pattern of trends. The essay reflects on likely explanations of the conflict between prediction and evidence, ranging from the differential fertility rates of secular and religious groups to theological moves in all dominant world religions that aim to blunt the apparent conflict between reason and religion. (2) The fluctuating endurance model is supported by some painstaking historical accounts of the development of religions over the centuries. But it is also called into question by historical studies of the evolution of religions over the millennia, and by recent multidisciplinary work on cultural evolution. (3) The same historical and multidisciplinary work also supports the plausibility of expecting another fairly fundamental evolution in the features of those world religions, or spinoffs from them, that will be successful in the future. To explore this possibility more systematically, the paper first offers ideal-type general descriptions of three prior stages – religion for good personal fortune; religion for public goods; and religion for pro-social norms – and offers thoughts on how the later stages each involved changes along multiple but related dimensions of religion and how those changes were related to changes in the typical external human environment. Finally, the paper then speculates about a plausibly emerging fourth stage – religion for expanding circles – in which there is more emphatic, widespread, and effective emphasis on norms relating to moral concern for out-groups and future generations, and ties such shifts to mega-changes (like greater globalization and environmental sustainability challenges) in the modern human environment. It then imagines, as a thought experiment, how the seven typical mechanisms of the dominant world religions might be modified in the fourth stage.
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Directors can reclaim their agendas and refocus on the work of leadership. Here’s how.
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This essay explores how three behavior-shaping systems - legal, market, and moral - influence the fundamental tasks of both for-profit and nonprofit organizations, including organizational goal-setting; motivation of participants; and deterring and reducing abuse of power. After identifying key features of these normative systems and their characteristic differences, the author argues that the influence of moral systems on nonprofit organizations may be underestimated, especially in view of their potentially unifying role with respect to all of the fundamental tasks. He suggests that the prospects for effective reform of nonprofit governance and accountability regimes are improved when the mechanisms and effects of these moral systems are taken into account.
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Robert C. Clark, Major Changes Lead Us Back to Basics (A Response to the Symposium on My Treatise), 31 J. Corp. L. 591 (2006).
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This paper seeks to draw a lesson for designing major reforms of corporate governance in the future. It recalls the key events leading to the recent seismic shift in corporate governance policies applicable to American public corporations, and identifies the four sources of policy changes – the Sarbanes Oxley Act, new listing requirements, governance rating agencies, and tougher judicial opinions (notably in Delaware) about perennial corporate governance issues. It presents a synthetic overview of the numerous reforms, which at the most general level aim to fix the audit process, increase board independence, and improve disclosure and transparency. It pauses to identify the vast territory of unchanged corporate governance rules that are still left to state law, and then examines some of the empirical studies that bear on whether the governance reforms can be confidently predicted to have strong positive results for investors. The exercise suggests an irony: Studies about the impacts of the most costly reforms, those concerning audit practices and board independence, are fairly inconclusive or negative, while studies about proposals for shareholder empowerment and reduction of managerial entrenchment indicate that changes in these areas – which in general are only atmospherically supported by the SOX-related changes – could have significant positive impacts. Admittedly, the general evidence for mandatory disclosure does suggest that the new round of enhanced disclosures, which are only moderately costly, will have good effects. The concluding section presents and explains a new approach for the next crisis-generated reform movement. It is based on the notion that bandwagons are unavoidable, but their motivating impact can be leveraged and their bad effects alleviated by good statutory design. In particular, legal reforms in the area of corporate governance should have bite but should also be explicitly structured to authorize and mandate (1) serious empirical study of the effects of particular regulatory changes (or existing rules), (2) periodic reassessment of regulations in light of such evidence (while also considering experience and analytical arguments, of course), and (3) explicit decisions to reaffirm or alter regulations in light of these reassessments.
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In this essay, Dean Clark examines the popular notion that the United States has too many lawyers and that this abundance burdens the nation. While acknowledging the great growth of law and lawyers in recent decades, Dean Clark argues that, before denouncing this trend, we should first seek to develop a fuller explanation of its causes and consequences. After discussing just what it is that lawyers do, Dean Clark critiques three current "cancerous growth" theories that attempt to explain why there has been such a great and unhealthy increase in the number of lawyers Dean Clark then offers and analyzes four "benign growth" theories-theories based on the assumption that the increasing demand for lawyers'services is an understandable consequence of fundamental social, political, and economic changes. Throughout the essay, Dean Clark indicates areas where additional research may yield a deeper understanding of the forces that shape the roles that lawyers assume in society and the demand for legal services.
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The real motive of this Article is quite general: to explore the most basic considerations arguing for and against major sources of rules. But it takes an inductive approach. The first part describes some key aspects of the recent debate about the choice between mandatory and enabling rules in corporate law. Its purpose is to illustrate the troubled dominance of one major model of the creation of norms-the contrac- tual model-in academic thinking. Later parts explore factors slighted by users of this model, and in doing so introduce ideas that reach far beyond the borders of business
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Robert C. Clark, Corporate Law (A. A. Balkema, 2nd ed. 1986).
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Some theoretical considerations for increased use of computer-assisted instruction (CAI) in legal education are compared with other teaching methods, empirical evidence of the method's effectiveness is discussed, and some of the activities involving CAI at Harvard Law School are outlined. (MSE)
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The doctrine of corporate opportunities provides that corporate fiduciaries cannot, without consent, divert and exploit for their own benefit any opportunity that should be deemed an asset of the corporation. Although courts and commentators agree on the policies underlying the doctrine, a variety of often conflicting tests have arisen to determine when a given opportunity properly should be termed a "corporate" one. In this Article, Professors Brudney and Clark criticize the vagueness of the various standards currently applied, and argue that a principled doctrine should distinguish, as the contemporary one does not, between contexts involving public corporations and those involving close corporations. In the former case, a categorical ban on diversion is usually appropriate; moreover, separate rules are appropriate for full-time executives, outside directors, and parent companies. In cases involving close corporations, a more flexible, selective approach should govern in light of the essentially contractual nature of the close corporate venture.
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Nonprofit hospitals currently enjoy favored legal status. In this Article, Professor Clark critically examines the basis for such preferential treatment. He begins by identifying endemic problems in the health care industry and then explores the relationship between nonprofit hospitals and these problems. He finds that the evidence does not persuasively establish that nonprofit hospitals serve as fiduciaries rather than exploiters, and that nonprofits engage in much involuntary cross-subsidization of medical services. He concludes that the legal favoritism for the nonprofit form is based not on sound reasoning and hard data but on intuition. Professor Clari proposes that the legal rules affecting nonprofit hospitals reflect this reality by treating both nonprofits and for-profits neutrally, by controlling cross-subsidization, and by strengthening consumers' information about and control over health care decisionmaking.
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A common trait of laws regulating financial intermediaries and their holding companies is the attempt to separate intermediation from other business activities. In this Article, Professor Clark describes the pervasiveness of this trait and, after an analysis of the possible justifications for it, determines that separation regulation is primarily addressed to antitrust concerns and to the concern for facilitating regulation of the soundness of financial intermediaries. He argues that the first concern does not call for specialized antitrust legislation whereas the second demands that current regulation be strengthened significantly.