Showing papers in "Buffalo Law Review in 2005"

A New Agenda for the Cultural Study of Law: Taking on the Technicalities

Abstract: This article urges humanistic legal studies to take the technical dimensions of law as a central focus of inquiry. Using archival and ethnographic investigations into developments in American Conflict of Laws doctrines as an example, and building on insights in the anthropology of knowledge and in science and technology studies that focus on technical practices in scientific and engineering domains, it aims to show that the technologies of law - an ideology that law is a tool and an accompanying technical aesthetic of legal knowledge - are far more central and far more interesting dimensions of legal practice than humanists have often conceded. The article's concrete focus is the nature of relations of means and ends in the Realist Revolution, as exemplified by the field of Conflicts, and the quiet but fundamental transformation of the character of those relations in mid and late-twentieth century legal knowledge.

Intellectual Property Rights in Digital Media: A Comparative Analysis of Legal Protection, Technological Measures and New Business Models under E.U. and U.S. Law

Abstract: How can intellectual property law operate to reward authors for their works, and to provide incentives for new creations, while not hindering freedom of expression and the free movement of information? How can intellectual property law promote access to culture and the free flow of ideas? How is it possible, in the new digital era, to reduce the number of violations of intellectual property rights and to balance the rights of holders and users? What are the new business models, the recent legal protections, and the technological measures used to deal with the use, distribution, and control of digital media? How can they

Finance Theory and Accounting Fraud: Fantastic Futures versus Conservative Histories

Abstract: Intellectual tension between the fields of finance and accounting may help to explain explosion of public company frauds. Finance theory diminishes the relevance of accounting information. Enron exploited this consequence while the SEC bought into it. After widespread frauds were exposed, Congress passed laws that address symptoms of finance’s futurism, not disease. Laws essentially prohibit pro forma financial reporting and regulate the selective flow of futuristic information to financial analysts. Untouched is the underlying disease of regulatory mandates requiring extensive disclosure of forward-looking information. Until the 1970s, the SEC prudently prohibited such futuristic disclosure as inherently unreliable; assisted by finance theory, the SEC’s stance steadily eroded to require such disclosure. The SEC likely had it right the first time. It is too late to reverse the mandatory futuristic disclosure regime. So reform policies must work within it. After elaborating the foregoing critique, this Essay mentions two: (1) future oriented disclosure should focus on material risks of future adversity and (2) accounting figures should be reported in ranges, not single amounts. Cunningham, Finance Theory and Accounting Fraud, Buffalo Law Review (2005) FINANCE THEORY AND ACCOUNTING FRAUD: FANTASTIC FUTURES VERUS CONSERVATIVE HISTORIES Lawrence A. Cunningham A secret at many leading business schools in the United States is a certain intellectual tension between the academic accounting and finance departments. The secret should be shared, however, because the underlying reasons for this tension may help to explain the explosion of public company frauds in the late 1990s and early 2000s. This possibility is important because policymakers responded to those frauds without awareness of the tensions. But the value of their reforms is diminished by ignoring how tools developed in the finance department retard those developed in the accounting department. Finance theory’s rise to intellectual and policy influence began in the 1970s. It threatened accounting’s relevance. In essence, it denied that accounting forms matter, holding that markets pierce those forms to determine value independent of accounting presentation. Numerous side effects manifest this theory’s dominance. Prominent among these are two practical accounting developments—a movement toward fair-value measures and discounted cash flow analysis—and two widespread market practices—pro forma financial reporting and analyst earnings forecasts. These and other side effects reside under the broad chapeau of the forward-looking disclosure regime inaugurated in the 1970s and expanded ever since. Reforms responding to financial fraud addressed the two pervasive market practices—targeting symptoms of pro forma reporting and analyst forecasting—but failed to address the disease. Reforms quite possibly made financial reporting worse. To correct this oversight, this essay recommends two steps: the forward-looking disclosure regime should include delineation of probable variability in financial data and financial data should be presented in ranges rather than discrete numerals.

Black Protectionism as a Civil Rights Strategy

Abstract: This Article has identified and outlined the parameters of Black protectionism, a practice used by African-Americans to protect prominent community members who have been charged with criminal or unethical activity. This practice took root during slavery-during a time when a false or minor charge against one African-American could result in death or great bodily harm to him and scores of other African-Americans. History has cultivated a culture of Black mistrust of Whites in particular and mainstream society in general. This suspicion is reinforced with the continued disparate treatment of African-Americans within the criminal justice system. History and contemporary conditions explain why Black protectionism - akin to a vote of confidence - has been available to prominent Blacks without limitation (e.g., political affiliation). As practiced, Black protectionism is a community statement of protest against an oppressive justice system. An analysis of how it works, however, reveals that its overbreadth renders it ineffective as a strategy for Black racial justice.

Arnold Schwarzenegger and Our Common Future

Abstract: On June 1, 2005, Governor Arnold Schwarzenegger gave a truly remarkable speech at the World Environment Day Conference in San Francisco. The crescendo, which was widely covered in the press, was that California would strike out on its own to combat global warming. Breaking ranks with President Bush’s approach to climate change, Governor Schwarzenegger stated, “I say the debate is over. We know the science. We see the threat. And we know the time for action is now.”1 At the close of the speech, the Governor signed Executive Order S-3-05, which lays out a series of goals and target dates to reduce California’s production of greenhouse gases.2 This is a curious situation. Arnold is a pro-business Republican who, until recently, exhibited very little concern for the environment in his political or personal life. Not long ago, the man owned seven Hummers. Perhaps the speech and the Executive Order are just cynical moves, designed to get votes in a predominately green state.3 But perhaps not,

Making Sense of the Sense of Justice

Abstract: This essay tries to shed light on a central, yet curiously understudied, concept in modern legal and political discourse: the sense of justice. It has been said that "law in the last analysis must reflect the general community sense of justice." But what is it? What do people mean when they refer to the sense justice? To assemble a serviceable account of the sense of justice requires leaving the comfortable confines of American jurisprudence, which has contributed precious little to this subject, and instead taking an interdisciplinary approach. Moral psychology, for one, has explored notions of moral sentiment and empathy for centuries. Political theory, too, deserves our attention, mainly because Rawls assigned the sense of justice a pivotal, though generally underappreciated, role in his theory of justice. Even linguistics will get a closer look because of the intriguing parallels between a sense of justice and a sense of language, and of moral and linguistic competence. In the end, the sense of justice emerges as a general normative competence consisting of a bundle of cognitive and volitional capacities. Understood in this way, the sense of justice is nothing less than a precondition of just cooperation and stability in a modern world void of substantive commonalities.

Autonomy and End of Life Decision Making: Reflections of a Lawyer and a Daughter

Abstract: As a law professor, I spend much of my time educating future lawyers about the law’s approach to end of life decision making. This issue basically arises at two different times: (1) at the planning stage, when an individual is healthy and competent and in a position to state his wishes and (2) when a person is in a compromised state, such that he cannot make or express wishes for himself, but health care decisions must be made. Although these situations are vastly different, the operating model is the same. In both situations, the law is concerned with maintaining the autonomy of the individual. The question of how one accommodates the needs of the family is ignored as the family’s preference is largely irrelevant within this legal model.1

Beyond the Bylaws: Hospital-Physician Relationships, Economics, and Conflicting Agendas

Abstract: People should think things out fresh and not just accept conventional terms and the conventional way of way of doing things. In 2003 the Seattle based retailer, Nordstrom, opened a new store on Chicago's trendy North Michigan Avenue. Unlike the department stores of old that carried a vast array of consumer goods, the new Nordstrom is a large shoe store, accompanied by a number of small cosmetic and clothing departments. 2 The Michigan Avenue Nordstrom is one small example of how the retail industry has been, and continues to be, shaped by various external forces in the consumer marketplace. While hospitals, with their unique blend of human resources, technologies, services and products, are far more complex organizations than department stores, they share a commonality in as much as they too have been profoundly impacted by market forces, which have shaped their structures and operations. Even a cursory examination of hospitals in the last twenty-five years demonstrates that the acute care facility of the early twenty-first century, like a department store, is contained in a far different structure than the hospital model which emerged post-World War II. Not only have hospitals undergone dramatic internal changes, but since the 1970s they have been moving services out of inpatient settings and have developed a wide array of affiliated, focused, outpatient service delivery programs. Unlike retail establishments, however, the structural evolution of hospitals driven by external markets is complicated by the presence of regulation, which paradoxically both sparks and impedes change. Unquestionably market forces, and in some cases regulations, have been catalysts for reshaping the structure of the American hospital. But to a large extent the regulatory system has been a major factor in protecting the structures of hospitals, retaining structural elements in the face of market forces, which, unchecked, may have even further eroded core features of the hospital. From a legal standpoint, the corporate structure of hospitals, best typified by its tripartite arrangement of board, medical staff, and administration, has remained a constant in the midst of the evolving complexities in acute care facilities. It is the contention of this article that the permanence in the corporate structure of hospitals, reflected in the tripartite arrangement is only a veneer under which profound changes are occurring, demonstrating that even the core features of general hospitals are being altered by market forces. In particular, the manner in which physicians relate to hospitals is changing, …