Faculty Bibliography
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This paper considers government mechanisms for auctioning production rights in which both the winners and the market structure, doupoly (dual-sourcing), monopoly (sole-sourcing), or government-owned production, are a function of the bids. In designing the optimal mechanism, the government considers the tradeoffs among consumer surplus, producer surplus, and revenue. Under incomplete information, doupoly is implemented less frequently, and government production more frequently, than under complete information. When bidders are symmetric, the optimal mechanism can be implemented as a modified second-price auction. Applications to privatization, deregulation, and defense procurement are discussed.
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Cass R. Sunstein, Economic Incentives, Environmental Law, and Democracy, 21 Ecology L.Q. 455 (1994).
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The Japanese main bank system is characterized by a nexus of implicit contracts.This chapter examines whether such unspoken agreements are really made, based on a comparison of Japanese and American banking systems. It is argued that if banks and firms want the arrangements stipulated by implicit contracts, then these should have been negotiated explicitly, and laid down in court-enforceable agreements. The fact that firms do not draft such agreements may indicate that they did not make them at all.
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Gerald L. Neuman, Justifying U.S. Naturalization Policies, 35 Va. J. Int'l L. 237 (1994).
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Commissioner Meissner has emphasized for us the importance of naturalization and the need to "put the N back into INS." The present Article aims toward an analogous goal: putting the "n" back into immigration law scholarship. It will not treat the requirements for naturalization as straight-forward, which in an academic context could mean undeserving of serious attention. Instead, it will inquire into their justifiability. By justifiability, I mean political justifiability, measured against the political principles applied in other legal contexts in the United States. Occasional discussions of the constitutionality of naturalization criteria dwell on the question whether congressional power over naturalization is "plenary" in the sense of being subject to no constitutional constraints, subject only to a rationality requirement, or immunized from judicial review. This Article will not address that issue of positive constitutional law, and will advert to constitutional doctrine only as one source of political principles applied in the United States. Although the inquiry begins somewhat abstractly, the focus will be entirely on the U.S. context, and (accordingly) the naturalization of aliens who have already been admitted as permanent residents. In some cases, parallel arguments might be made about the naturalization policies of other nations, but I have not attempted to keep track of the degree of generality of the arguments. For the United States, I will identify four simple normative models of naturalization of resident aliens. Each of these models comes with its own set of constraints on the justifiability of naturalization ...
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This Article applies Japanese market behavior to Richard Epstein's theories in his book Forbidden Grounds: The Case Against Employment Discrimination. The author uses Japan to argue that economic incentives need not matter, and that whatever incentives markets and laws may provide, people may still ignore them. This Article suggests that if independent social norms can sustain systematically unprofitable behavior in Japan, then maybe they would have sustained Jim Crow policies in the American south. If Japanese routinely ignore economic incentives to perpetuate social norms, then whites might have ignored the market advantage to hiring African Americans and discriminated against their own best interests.
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Ronald S. Sullivan, Jr., Note, A License to Search: The Plain Feel Exception under Minnesota v. Dickerson, 113 S.Ct. 2130 (1993), 11 Harv. BlackLetter L.J. 181 (1994).
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From the 1930s to the early 1960s civil rights law was made primarily through constitutional litigation. Before Rosa Parks could ignite a Montgomery Bus Boycott, the Supreme Court had to strike down the Alabama law which made segregated bus service required by law; before Martin Luther King could march on Selma to register voters, the Supreme Court had to find unconstitutional the Southern Democratic Party's exclusion of African-Americans; and before the March on Washington and the Civil Rights Act of 1964, the Supreme Court had to strike down the laws allowing for the segregation of public graduate schools, colleges, high schools, and grade schools.
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Three recent scientific reports that purport to show a biological basis for homosexuality have changed the face of pro-gay equal protection litigation by making the argument from immutability more attractive. Professor Janet E. Halley critiques these studies and their reception in legal culture. Because immutability is not a requirement for successful pro-gay litigation, moreover, Professor Halley contends that pro-gay litigators who invoke the argument from immutability do so not only at their option, but at the risk of misrepresenting and dividing the community they hope to represent. She argues that progay legal argument should focus instead on common ground that adequately represents the self-conceptions of both pro-gay essentialists and pro-gay constructivists. And she suggests just such a common ground for more effectively articulating pro-gay equal protection arguments.
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Proponents of hate speech regulations, notes Harvard Afro-American Studies department head Gates in the best of these six essays, must be met with more than conventional free speech absolutism. He elegantly dissects the practical problems of such codes (who defines "historically oppressed?") and attributes their rise to "the seductive vision of the therapeutic state." Also notable are three short stories, including one about a silenced comedian by Griffin, a black Texas lawyer professionally censured for representing the Ku Klux Klan. Other contributors write in lawyerish style but make some worthy points: dialogue, not censorship, might better lead us to racial reform; contrary to common perception, the American Civil Liberties Union devotes more resources to fighting racism than defending racists; despite radical law professors' arguments that the equality provisions of the Fourteenth Amendment should take precedence over the free speech guarantee of the First, gay and lesbian gains have relied mainly on the First Amendment.
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"The distinctive character of corporate business enterprise in the United States - large firms guided by powerful, centralized managers, historically deferential directors, and distant shareholders - is usually thought to be the inevitable result of economic and technological forces. In this major reinterpretation of the origins and evolution of corporate structure, Mark Roe shows that the nature of the American corporation derives not only from these forces but also from political decisions that made alternative forms of organization costly or illegal. Review: Drawing upon work in economics, history, law, and political science, Roe argues that the role of politicians in mediating the interaction between firms and financiers is a critical, but neglected, part of the explanation why certain forms rather than others prevailed." "In their classic 1932 study, The Modern Corporation and Private Property, Adolf Berle and Gardiner Means argued that the separation of ownership and control was the consequence of industrial technologies requiring large-scale production, which in turn led to highly dispersed stockholding. Roe demonstrates, however, that the ownership structure of the American corporation represents just one of several possible outcomes, and that other organizational forms arose abroad (in Germany and Japan, for example) under the influence of different political conditions. Review: At a number of critical junctures, political choices were made about how savings were to be channeled to industry that sharply restricted the power of financial institutions to shape the growth of large firms. These decisions, which pre-dated the New Deal, going as far back in some cases as the nineteenth century, reflected the American public's enduring dislike of concentrated financial power. Once these rules for the governance of financial institutions were in place - but not before - the Berle-Means corporation became inevitable." "In recent years, new technological and competitive challenges have forced many of America's largest firms to restructure, often painfully. Some are now more efficient and productive, others are not. Relationships among shareholders, directors, and senior managers remain in flux, and tensions over whether shareholders are to have a greater or smaller voice in corporate management in the future may become acute. Review: If history is any guide, Roe suggests, the issue will eventually be settled not only in boardrooms and on stock exchanges but also in statehouses and in Congress." --BOOK JACKET.
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Crime is widely perceived as a major blight that decreases happiness, productivity, and security in the United States. Defining crimes and protecting people from criminality are central tasks that we assign to the state. Like many social ills, crime afflicts African- Americans with a special vengeance. African-Americans are considerably more likely than whites to be raped, robbed, assaulted, and murdered. Many of those who seek to champion the interests of African-Americans, however, wrongly retard efforts to control criminality. They charge that the state, at least in its role as administrator of criminal justice, is now (as it has been historically) an instrument of racist oppression. In all too many instances, these allegations are overblown and counterproductive; they exaggerate the extent of racial prejudice in the criminal justice system and detract attention from other problems of law enforcement that warrant more consideration. What such critiques ignore or minimize is that the main problem confronting black communities in the United States is not excessive policing and invidious punishment but rather a failure of the state to provide black communities with the equal protection of the laws. Although this failure often stems from a pervasive and racist devaluation of black victims of crime, ironically, a substantial contributing cause is a misguided antagonism toward efforts to preserve public safety.
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William B. Rubenstein, The Stonewall Anniversary: 25 Years of Gay Rights, 21 Hum. Rts., Summer 1994, at 18.
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Martha Minow, The Welfare of Single Mothers and Their Children 26 Conn. L. Rev. 817 (1994).
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The written version of a lecture given as part of the annual Day, Berry & Howard Visiting Scholar Series at the University of Connecticut School of Law (October 14, 1993).
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Alexandra Natapoff, The Year of Living Dangerously: State Courts Expand the Right to Education, 92 Educ. L. Rep. 755 (1994).
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Randall L. Kennedy, Tocqueville and Racial Conflict in America: A Comment, 11 Harv. BlackLetter L.J. 145 (1994).
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The casebook provides the tools for fast, easy, on-point research. Part of the University Casebook Series; , it includes selected cases designed to illustrate the development of a body of law on a particular subject.
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Todd D. Rakoff, Washington v. Davis and the Objective Theory of Contracts, 29 Harv. C.R.-C.L. L. Rev. 63 (1994).
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Presented as the Rome Lecture at the University of Maryland School of Law (March 23, 1994). Reprinted in: Health Care Reform: Meeting Community Needs, Summary of Proceedings of the 1993 Pew Health Policy Program Annual Meeting (Jon A. Chilingerian & Shirley S. NIchols eds., National Academy Press 1994) at p. 53.