Showing papers in "New York University Law Review in 1998"

The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not to Compete

Abstract: Recent scholarship has argued that the comparative success of the Silicon Valley high technology industrial district and failure of Route 128 outside of Boston, resulted from different patterns of inter-firm employee mobility which, in turn, led to differing patterns of industrial organization: network organization as opposed to traditional vertical integration. The cause of the different patterns of employee mobility is said to be cultural differences between California and Massachusetts. This paper offers a different causal analysis. After reviewing the new economic geography's emphasis on inter-firm knowledge transfers as an agglomeration economy, I focus on the critical role of employee mobility -- the vehicle for inter-firm knowledge transfers -- in facilitating second-stage agglomeration economies: those that allow the district to transcend its original product cycle and reinvent itself. In this account, the legal rules governing employee mobility are a causal antecedent of the construction of each district's culture. In fact, California law prohibits the most effective means of protecting trade secrets embodied in tacit knowledge -- a contractual post-employment covenant not to compete. Massachusetts law, in contrast, allows their enforcement. Consistent with the new economic geography's emphasis on path dependence, the paper shows that California's unusual legal regime dates back to the early 1870's, a serendipitous result of the historical coincidence between the codification movement in the United States and the problems confronting a new state in developing a coherent legal system. The paper concludes with a cautionary note concerning the implications of the analysis for three related subjects: the standard law and economic prescription to fully protect property rights in intellectual property; a disturbing recent line of cases concerning claims of "inevitable disclosure" that threatens to turn trade secret law into the judicial equivalent of a covenant not to compete; and the right strategy for policy analysts assessing reform of a region's legal system to encourage high technology industrial districts.

Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning

Abstract: In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical legal problem, the authors have produced an unprecedented empirical study of judicial reasoning in action. By exploiting this treasure trove of data, the authors have looked deeper into the judicial mind and observed the emergence of influences upon the manner in which a judge examined the constitutional issues, adopted a constitutional theory, and engaged in legal reasoning.

The Functions of Trust Law: a Comparative Legal and Economic Analysis

Abstract: This Article analyzes the functions served by the law of trusts and asks, first, whether the basic tools of contract and agency law could fulfill the same functions and, second, whether trust law provides benefits that are not provided by the law of corporations The analysis is motivated in part by the increasing interest in the trust -- a familiar feature of common-law jurisdictions -- in a number of civil law countries, and in part by the important role that trusts, such as pension funds and mutual funds, have come to play in capital markets The article concludes that the important contribution of trust law lies not in its well-recognized role of ordering, via default rules of contract, the relationships among the principal parties to the trust Rather, the principal benefit of trust law lies in its ordering of relationships between those parties and third parties with whom they deal, relationships that cannot easily be rearranged by contract Most conspicuously in this respect, trust law allows the parties to the trust to partition off a discrete set of assets for separate treatment in relationships formed with creditors The essential role of the trust, therefore, is to perform a property law-like, rather than a contract law-like, function The article also notes the increasing convergence of trust law and corporate law, and asks whether the roles performed by these two legal forms could just as well be served by a single form

Is International Antitrust Possible

Abstract: This Article analyzes the economic incentives countries face in selecting an antitrust policy. It demonstrates that, in the presence of international trade, antitrust policies chosen by national government will generally not lead to an outcome that is desirable from an international perspective.

The Struggle Against Hate Crime: Movement at a Crossroads

Abstract: The 1980s and 1990s witnessed an extraordinary amount of police, legislative, judicial, scholarly, and community activity around hate crime. Such activity was attributable to a new "anti-hate-crime movement," conditions for which were created by the convergence in previous decades of two very different social movements - civil rights and victims' rights. This anti-hate-crime movement has been radiply assimilated into the institutions of criminal justice, with the result that anti-hate-crime measures now reflect the culture and priorities of those institutions. The civil rights and victims' rights movements created collective beliefs, structural resources, and political opportunities that facilitated the emergence of a social movement organized around hate crime and its victims. Hate crime laws were the most visible manifestation of the movement's legal impact, but represent but one aspect of a larger legal and societal response. Much of the success of the movement is attributable to the fact that anti-hate-crime measures fit easily into the values of the criminal justice system; however, that system remains weighted against hate crime victims and their communities. For target communities, the desire to be free from hate crime is inseparable from the desire to be free. Anti-hate-crime measures too frequently address the former but not the latter. To acheive its goal of systemic transformation of criminal justice, the anti-hate-crime movement must engage in critical self-reflection, invest in movement infrastructure, and recommit to challenging the very institutions of criminal justice with which it now cooperates.

The commonplace second amendment

Abstract: The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured. Looking at these state provisions, he suggests, cart shed light on how the similarly structured Second Amendment should be interpreted. In particular, the provisions show that constitutional rights will often-and for good reason-be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.

Constructing a jury that is both impartial and representative

Abstract: One of the main and ongoing problems plaguing the American jury system has been ensuring that juries in civil and criminal trials are truly representative of the communities in which they serve. Historically, minorities have been disproportionately excluded from jury service. This shortfall results from a combination of factors at each stage of the juror identification process. At the jury pool stage, juror notification methods often fail to identify or reach minorities for tie simple reason that minorities generally are poorer and more transient. At the venire stage, those minorities who actually receive notification report to the courthouse at a lower rate than the majority because they ignore the summons and claim hardship more often. Finally, at the petit jury stage, prosecutors and other litigants typically eliminate most if not all, minority venirepersons through the use of both peremptory and for cause strikes. Authors Edward Adams and Christian Lane take on this problem of underrepresentation on juries by focusing on tie latter stage of jury selection — the use of peremptory strikes. They argue that prosecutors often use peremptories in a discriminatory manner to eliminate potential jurors based on their race. The authors argue that although it intended to remedy tie striking of minority venirepersons for racial reasons, the Supreme Court in Batson v. Kentucky failed to deter the practice effectively. Batson prohibits the striking of jurors based on race, but allows the use of peremptory challenges with a \"race neutral\" explanation. Dean Adams and Mr. Lane propose a new method of jury selection which dispenses with peremptory challenges and which, they assert, will rid the jury selection process of discrimination. Borrowing a concept front corporate law, they propose a new method based on a cumulative voting model The authors contend that this new method for impaneling juries is free of the pitfalls that plague the current system and other alternative proposals. They argue that adopting their method will result in more representative juries.

“To Learn and Make Respectable Hereafter:” The Litchfield Law School in Cultural Context

Abstract: The reopening of Harvard Law School in 1829 is usually considered the beginning of modem American legal education.2 Whether one's goal is to glorify the legal profession or to demonize its members, the efforts of benefactor Nathan Dane and professor Joseph Story to standardize and invigorate the study of law at America's leading university have served as a convenient line of demarcation.3 The intimate ties between the school's leaders and the emerging industrial capitalist elites of New England make the tale particularly appealing to minds with a conspiratorial bent. Joseph Story-a prolific and learned judge who wore his class prejudices as a badge of honor-is

Forgive Us Our Sins: The Inadequacies of the Clergy-Penitent Privilege

Abstract: One of the many common law rules to take hold in the United States is the \"clergy-penitent\" privilege.' An evidentiary rule, the clergy-penitent privilege protects from revelation evidence concerning a penitent's communication with his cleric. Simultaneously, the First Amendment to the Constitution addresses the interaction of church and state via the Establishment Clause and Free Exercise Clause, raising the following question: to what extent is the common law clergypenitent privilege abrogated or expanded by the First Amendment? This Note will demonstrate that, as understood by most courts and legislatures, the clergy-penitent privilege does not conform completely to the requirements of the First Amendment. As a result, the privilege at times violates the Amendment's Establishment Clause by unduly preferencing religion. Additionally, at other times the privilege's protections are insufficient, offending the notions of religious liberty and tolerance upon which both the First Amendment's Establishment Clause and Free Exercise Clause were built. A vivid example of the inadequacies of the current system is provided in Commonwealth v. Kane.2 In Kane, a Roman Catholic priest refused to testify to communications the defendant made to him, although the defendant had waived his rights to the privilege and consented to the disclosure of the communications in question.3 The defendant's position was that he had confessed nothing inculpatory, and he wanted the priest to corroborate this.4 The court held that the right to assert the privilege was the defendant's and that the priest's refusal to testify after the defendant's waiver was unlawful.5 The

Realization as Subsidy

Abstract: Perhaps no concept in tax law is so well established, and yet so widely criticized, as realization, the rule that defers tax on appreciated property until it is sold. In this Article, Professor Schizer offers a new justification for realization: It is a subsidy for savings. The recent reduction in the capital gains tax rate suggests that Congress wants such a subsidy, the author observes. He then argues that realization has a significant advantage as a subsidy. It is credible, in that taxpayers expect it to survive long enough for them to collect it. This is important, Professor Schizer then argues, because realization offers taxpayers no benefit when an investment is made. It offers only the government's word -- a promise, in essence -- that unrealized appreciation will not be taxed. The author then demonstrates that even though the government remains free to renege on this promise, taxpayers will not expect this for reasons rooted in history, administrability, and politics. Taxpayers thus will have more confidence in realization than in another "promise" subsidy, a low capital gains rate. Notwithstanding this advantage, the author then points out, realization has unique disadvantages, such as the tendency to lock investors into particular investments, and also shares efficiency and equity concerns common to all savings subsidies.

A New Options Theory for Risk Multipliers of Attorney's Fees in Federal Civil Rights Litigation

Abstract: This Article provides five distinct contributions to the literature about federal civil rights litigation. First, the Article applies a new and very general technique of real options analysis to federal civil rights litigation. A real options approach to litigation recognizes that litigation contains a series of continuation options. Second, the Article demonstrates that a real options theory of federal civil rights litigation provides insights different from traditional views on the incentives of plaintiffs' attorneys to accept cases. Third, the Article derives an options-based risk multiplier that lies in between the current Supreme Court position of no risk multiplier and the traditional risk multiplier equal to the reciprocal of the initial probability of the plaintiff winning at trial. Fourth, the Article makes use of a real options perspective to investigate plaintiffs' attorneys incentives to settle lawsuits. Finally, the paper utilizes a real options theory of federal civil rights litigation to suggest reforming the statutory law or judicial doctrine of risk multipliers to compensate plaintiffs' attorneys for the risk of not getting paid if they lose.