Showing papers in "Yale Law Journal in 1985"

The Trolley Problem

Abstract: Some years ago, Philippa Foot drew attention to an extraordinarily interesting problem.\" Suppose you are the driver of a trolley. The trolley rounds a bend, and there come into view ahead five track workmen, who have been repairing the track. The track goes through a bit of a valley at that point, and the sides are steep, so you must stop the trolley if you are to avoid running the five men down. You step on the brakes, but alas they don't work. Now you suddenly see a spur of track leading off to the right. You can turn the trolley onto it, and thus save the five men on the straight track ahead. Unfortunately, Mrs. Foot has arranged that there is one track workman on that spur of track. He can no more get off the track in time than the five can, so you will kill him if you turn the trolley onto him. Is it morally permissible for you to turn the trolley? Everybody to whom I have put this hypothetical case says, Yes, it is.2 Some people say something stronger than that it is morally permissible for you to turn the trolley: They say that morally speaking, you must turn it-that morality requires you to do so. Others do not agree that morality

Public Administration and Public Deliberation: An Interpretive Essay

Abstract: How should public administrators decide what to do? Elected officials often will not or cannot tell them. Statutes tend to be written in vague language, unhelpful for "hard cases" of the sort that the legislative drafters never contemplated or did not wish to decide. But it will simply not do to allow public administrators unbridled discretion. Unelected officials are, after all, unelected. Why should citizens trust their judgments? The first part of this essay is about how our society has come to answer these questions, how it views the place of public administration within a democracy. The second part contains a critique of this dominant view, which through its emphasis on administrative process has led us to focus on how the administrator operates, and overlook the social import of what he does. The final part of the essay suggests an alternative approach to public administration, an approach designed to nurture public deliberation and the discovery of shared public values.

Out of Eden

Abstract: Religion can inspire. It can also distort, and this is precisely what it does for Professors McThenia and Shaffer.' It leads them to mistake the periphery for the center. In my earlier article' I tried to come to terms with a movement that seeks alternatives to litigation. Known as ADR ("Alternative Dispute Resolution"), this movement is headed by Chief Justice Burger and is now sweeping the bar. It recently received the endorsement of the President of Harvard, Derek Bok, and the Advisory Committee on the Federal Rules of Civil Procedure. In 1983, the Advisory Committee managed to revise Rule 16 to strengthen the hand of the trial judge in brokering settlements, and for the last two years the Committee has been engaged in a determined campaign to amend Rule 68 to create additional pressure for settlement. The party who rejects an offer of settlement would, if the Advisory Committee has its way, stand in jeopardy of paying the attorney's fees of the other side. Professors McThenia and Shaffer now lend their voices to this movement, but in an unusual way. They add a religious dimension. They emphasize reconciliation rather than settlement, and appear to be moved by a conception of social organization that takes the insular religious community as its model: "Justice is what we discover-you and I, Socrates said-when we walk together, listen together, and even love one another, in our curiosity about what justice is and where justice comes from."4 McThenia and Shaffer speak out on behalf of social mechanisms that might restore or preserve loving relationships and, not surprisingly, they find the judicial judgment a rather inept instrument for that purpose. I have no special interest in countering their plea: I am as much for love as the next person. What McThenia and Shaffer say is not wrong,

From informed consent to patient choice: a new protected interest.

Abstract: Judges and legal scholars have long asserted the importance of patient autonomy in medical decisionmaking. Yet autonomy has never been recognized as a legally protectable interest. It has been vindicated only as a byproduct of protection for two other interests-bodily security as protected by rules against unconsented contact, and bodily well-being as protected by rules governing professional competence. Neither bodily security nor bodily well-being, however, is an adequate surrogate; they do not coincide with autonomy. Nor is autonomy merely a formal issue. Decisionmaking by competent professionals does not provide an adequate substitute for patient choice. Injuries that arise from invasion of patients' interest in medical choice are both substantial and distinct. Part I of this Article explains the importance of patient autonomy and describes how existing doctrines protect that value. Part II examines gaps and flaws in that current scheme of protection. Part III analyzes clusters of cases in which greater vindication of patient autonomy has begun to

The Costs of the Consensual Myth: Antitrust Enforcement and Institutional Barriers to Litigation in Japan

Abstract: Even in the West, lawyers have never been loved. As Mozart blamed an attorney for plotting to prevent Figaro from marrying Susanna, so Orson Welles may have blamed the venerable Mr. Thatcher for separating Charlie Kane from his Rosebud; indeed, Shakespeare would have executed the entire profession.' Notwithstanding their alleged venality, lawyers in the West have done well for themselves. But in Japan, we are told, they have sunk to their proper station in life. Japan has become in the American imagination a place where lawyers are few, litigation is rare, and the bureaucracy governs by developing a national consensus.' What the Japanese save on legal fees, they use to develop computers, video games, and Walkmans. There are indeed few lawyers and lawsuits in Japan. This dearth has been a mixed blessing, however, for the scarcity of litigation has led to a substantial under-enforcement of the law. In antitrust, inadequate enforcement has resulted in price-fixing cartels and production restraints. This shortage of lawyers and litigation does not, as commentators have often suggested, result solely from a "nonlitigious" ethos. There may indeed be such an ethos, but it is an ethos buttressed by an array of institutional barriers to litigation that would discourage all but the most persistent plaintiffs in any society. This Article approaches antitrust law as a case study in the role of litigation in Japan. It begins by summarizing the role of private litigation in deterring illegal behavior and describing the relation between cultural attitudes toward litigation and institutional barriers to the use of the

Your Loss or My Gain? The Dilemma of the Disgorgement Principle in Breach of Contract

Abstract: t Alfred McCormack Professor of Law, Columbia University School of Law. B.S. 1948, University of Michigan; M.A. 1949, Yale University; J.D. 1952, Columbia University. For benefits beyond expectation, my thanks go to Bruce Ackerman, Steven Burton, John Coffee, Douglas Laycock, Paula Powers, Doug Rendleman, Susan Rose-Ackerman, William F. Young, and the other Columbia colleagues who discussed a draft of this Article at an informal seminar, as well as Arthur H. Kohn, my research assistant. For financial support, I am grateful to the Columbia Center for Law and Economic Studies.

Alexander Bickel's Philosophy of Prudence

Abstract: Six years after Alexander Bickel's death, John Hart Ely described his former teacher and colleague as \"probably the most creative constitutional theorist of the past twenty years.\"\" Many today would concur in Ely's judgment.' Indeed, among his academic peers, Bickel is widely -regarded with a measure of respect that borders on reverence. There is, however, something puzzling about Bickel's reputation, for despite the high regard in which his work is held, Bickel has few contemporary followers.' There is, today, no Bickelian school of constitutional theory, no group of scholars working to elaborate Bickel's main ideas or even to defend them, no continuing and connected body of legal writing in the intellectual tradition to which Bickel claimed allegiance. In fact, just the opposite is true. In the decade since his death, constitutional theory has turned away from the ideas that Bickel championed, moving in directions he would, I believe,

The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment

Abstract: The principle that the state necessarily owes compensation when it takes private property was not generally accepted in either colonial or revolutionary America. Uncompensated takings were frequent and found justification first in appeals to the crown and later in republicanism,1 the ideology of the Revolution. The post-independence movement for just compensation requirements at the state and national level was part of a broader ideological shift away from republicanism, which stressed the primacy of the common good, and toward liberalism.2 At the time the Bill of Rights was adopted, that shift had not been completed, but the trends of the revolutionary era received coherent expression in the thought of James Madison, the author of the Fifth Amendment's just compensation clause. 3

A Theoretical Analysis of Corporate Greenmail

Abstract: Few issues in corporate law or governance have moved from the wings to the center stage of public attention as rapidly as the issue of negotiated stock repurchases, popularly known as \"greenmail.\"' The tactic was little used until recently.2 With the rise of \"corporate raiders\" like Victor Posner and Carl Icahn, however, greenmail payments are now more frequent and more controversial. Between April 1983 and April 1984, corporations

How Should We Talk about Corporations? The Languages of Economics and of Citizenship

Abstract: My immediate subject in this Comment is section 2.01 of the American Law Institute's proposed Principles of Corporate Governance (Tentative Draft No. 2), which defines in general terms the proper objectives and conduct of a business corporation.1 My larger subject has to do with the adequacy and inadequacy of various languages in which corporate purposes and limits might be expressed, and especially with the limits of the economic language used in the ALI Draft. The section on corporate purpose was heatedly debated at the ALI meeting last spring and will presumably be discussed again.' As readers of the Journal may already know, the corporate governance project as a whole is one of the most pressing and problematic on the Institute's agenda, and section 2.01 is crucial to the meaning of the current Draft. While I have not practiced corporate law for many years, I have recently done some thinking about writing and argument, and it is in that light that I wish to offer these remarks. Of course, I will talk about the substance of corporate law, and to some extent what I say will differ from the Tentative Draft. But I think that much of what I say on the merits is at

Taking the Right to Appeal (More or Less) Seriously

Abstract: The right to appeal1 at least once without obtaining prior court approval is nearly universal 2-within the universe bounded by the Atlantic and Pacific Oceans, Mexico and Canada.' Although its origins are neither constitutional nor ancient,4 the right has become, in a word, sacrosanct. During the past decade of high anxiety over the burdens placed on our judicial system by what has fairly been termed a litigation explosion, the basic right to take an appeal has remained virtually untouched and, indeed, uncommented upon. 5

Forcing the Bystander to Get Involved: A Case for a Statute Requiring Witnesses to Report Crime

Abstract: Criminal activity is continuing at an alarming rate in the United States,' causing widespread fear 2 and changing how people live their lives.' Although some citizens assist the police in combatting crime,4 the majority of crime goes unreported, severely hampering the efforts of the police.' Without prompt crime reporting by citizens, the chance of apprehending criminals diminishes significantly.7 Commentators have proposed to increase citizen involvement in all emergencies, both criminal and noncriminal, through the imposition of an affirmative duty to rescue.' While such a duty may be appropriate in

Rationalizing Antitrust Cluster Markets

Abstract: t I would like to thank Peter Ezersky, Al Klevorick and Richard Schmalensee for helpful comments. Special thanks go to Thomas Welch for piquing my interest in this subject and to Walter Vandaele for encouraging my research. 1. The courts' objective in defining the relevant line of commerce for antitrust purposes has been "to recognize competition where, in fact, competition exists." Brown Shoe Co. v. United States, 370 U.S. 294, 326 (1962). Because substitutes compete, substitutability in demand or supply has been the prime criterion for setting the boundaries of a market. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 (1956) (goods that are "reasonably interchangeable by consumers" should be placed in the same market); Brown Shoe Co., 370 U.S. at 325 n.42 ("cross-elasticity of production facilities may also be an important factor in defining a product market"). By this substitutability criterion, if an antitrust defendant produced several goods (that is, was a multiproduct firm), a separate market would be defined for each of the defendant's products, consisting of each product's respective substitutes. See U.S. Dep't of Justice, Merger Guidelines, 49 Fed. Reg. 26,823, 26,828 (1984) [hereinafter cited as "Guidelines"] ("The Department will first determine the relevant product market with respect to each of the products of each of the merging firms."). For a general discussion of antitrust market definition, see R. POSNER & F. EASTERBROOK, ANTITRUST 347-85 (2d ed. 1981). 2. "Tied products" are those which sellers require to be purchased together. In cluster cases, defendant firms offer to sell a number of "untied products," but do not require that they be purchased together. See R. POSNER & F. EASTERBROOK, supra note 1, at 802 (discussing tying arrangements). 3. This point was explicitly made by the court in JBL Enter. v. Jhirmack Enter., 509 F. Supp. 357, 368-69 (N.D. Cal. 1981), affd, 698 F.2d 1011 (9th Cir. 1983) (full-line cluster of beauty products held to be relevant market even though individual products were "not interchangeable for the end user" and there was no production flexibility). See also United States v. A.T.&T., 524 F. Supp. 1336, 1375 (D.D.C. 1981) ("[uIn United States v. Grinnell [384 U.S. 563 (1966)] the Supreme Court aggregated central fire alarm and burglar alarm systems without suggesting that these services are economic substitutes to any extent."). Some courts, however, seem to have clustered products on the basis of supply substitutability. For example, in United States v. Hughes Tool Co., 415 F. Supp. 637 (C.D. Cal. 1976) (clustering specialized surface rotary drilling products), while the court did not explicitly define the market on the basis of supply substitutability, it found that "any large heavy machinery manufacturer would have plant facilities, personnel and at least basic equipment to go into production on any of these products . . .within a relatively short period of time." Id. at 642. This description fits the classic definition of supply substitutability. See R. POSNER & F. EASTERBROOK, supra note 1, at 352. See also FTC v.

Employment Equality under the Pregnancy Discrimination Act of 1978

Abstract: Pregnancy discrimination exhibits a coherent social logic. The exclusion of women from employment on the basis of pregnancy perpetuates the sexual division of productive and reproductive labor, thereby confirming women's second class status in the work force. The Pregnancy Discrimination Act of 1978 amends Title VII of the Civil Rights Act of 1964 by clarifying that the Act's proscription of sex-based employment discrimination includes discrimination on the basis of pregnancy.3 The PDA has been construed to require that pregnant employees be treated comparably with others on the basis of ability or inability to work. This Note challenges the sufficiency of a standard of comparable treatment on statutory and broader, equitable grounds.

Pretrial Detention of Juveniles: Denial of Equal Protection Masked by the Parens Patriae Doctrine

Abstract: Each year, almost 900,000 minors in the United States are detained in various types of adult and juvenile facilities after arrest but before any determination of guilt.' This detention severely disrupts these juveniles' lives by separating them from their families, schools, and communities, and by subjecting them to harsh and often dangerous conditions.2 For the majority of these minors who present no serious threat to the communities from which they are exiled,8 such potentially harmful incarceration appears unjustifiable. In its recent consideration of a typical juvenile pretrial detention statute, however, the Supreme Court was able to swallow this troubling lack of correlation between detention and dangerousness with the help of a sweetening4 rationale: The statute affects only juveniles.5

Land Use and the Study of Early American History

Abstract: Good history books do more than relate history. A good history book provokes the reader to think about the present, to consider the relevance of past experiences to the issues of current society. A good history volume should be, not an enclosed package of facts and interpretations, but a point of departure for the reader's thbughts. When a history book successfully fulfills this provocative function, it deserves the attention of readers whose interests lie more with the present than with the past. William Cronon's Changes in the Land' and Stephen Innes' Labor in a New Land,2 two recent works on colonial New England society, are good history books by this definition. Both are thoughtful, well-digested

Rethinking Fairness: Perspectives on the Litigation Process

Abstract: For decades critics of the litigation system have bemoaned the delays and costs of courtroom encounters while working mightily to refine the system in ways that make it even slower and more expensive. This paradoxical approach reflects the strengths and weaknesses of legal training. Skillful in analysis and advocacy, lawyers have recognized those aspects of trial procedure that can be changed to increase the likelihood of achieving better results and then engrafted well-intentioned changes onto an already complex system. At the same time, lawyers' preoccupation with results and their inadequate appreciation of the need to evaluate the system in which they function cause them to ignore the adverse consequences of the litigation process they have constructed. They know that the system is slow and costly. But they fail to recognize that the solutions they have developed over the years are a large part of the problem. The paradox will continue until we realize that constructive change requires not simply adjustments in what we do in the courtroom but fundamental rethinking about what we are trying to accomplish there. In my judgment such rethinking should begin with the concept that underlies so much of our procedural and substantive law-the concept of fairness. My premise is that the way we think about fairness, and not any specific result of our thinking, is a root cause of many of the undesirable aspects of our modern process of litigation. Our narrow emphasis on perfecting re-

The Cellophane Fallacy and the Justice Department's Guidelines for Horizontal Mergers

Abstract: The Justice Department's Merger Guidelines, originally issued in 1982' but subsequently revised slightly and reissued in June, 1984,2 have been heavily criticized, primarily because of the economic theories upon which they rely.' Regardless of whether the underlying theories are sound, however, the Guidelines sometimes contravene their stated policy of preventing mergers that create, enhance, or facilitate the exercise of market power.' They do this by discriminating in favor of mergers between firms already charging monopoly prices.' This Note explains how the Guidelines discriminate in favor of such mergers, shows why such discrimination is inappropriate, and suggests a practical way to eliminate the problem. Part I provides background information on the Guidelines. It also explains how, by failing to employ the competitive price as the baseline for defining the relevant market, the

The Leff Dictionary of Law: A Fragment

Abstract: ion. A taking, with an implication of wrongfulness. See abstract. An all pervasive intellectual technique in which one treats a complex entity or process or, indeed, any pile of empirical data, as if it were much simpler than one knows it to be. The technique itself is quite complex, but its basic move is to think and talk about something as if many things about it are not relevant for then present purposes, i.e., as if for present purposes they don't exist. We do that every time we talk about classes of things as if there were no differences among the members of the class, e.g., as if the class \"cow\" was made up of identical cows. In fact, of course, every cow is what she is, but for some purpose (e.g., not running into them with cars) they can be treated as \"the same.\" Similarly, a chemist may choose to think of a gas as composed of perfectly elastic spheres of mathematical-point dimension which exert no force on each other except by collision. Or an economist may choose to think about transactions between people as being free of transaction costs. Or a lawyer may think about a rule of law as if all persons to whom it is addressed identically know about and understand it.

Golden Parachutes and the Business Judgment Rule: Toward a Proper Standard of Review

Abstract: \"Golden parachutes\" are special termination agreements that shelter executives from the effects of a corporate takeover.' Typically, golden parachutes are \"triggered\" by a change in control of the corporation.2 Once operative, they provide executives who are dismissed or who, under certain circumstances, resign as a result of a takeover with either continued compensation for a specified period following the executives' departure or with a lump-sum payment.3 Although relatively new,4 golden parachutes are rapidly becoming commonplace.\" Notwithstanding the recent popularity of golden parachutes, however, their legality and desirability as a form of executive compensation have been challenged by many who believe that golden parachutes are nothing more than corporate looting. Stockholders have mounted court challenges but have not yet obtained any definitive decision on the merits;'

Indian Religious Freedom and Governmental Development of Public Lands

Abstract: In the early 1970's, the federal government abandoned its official policy of terminating tribes as a means of forcing American Indians' to assimilate into mainstream society.' Yet the elimination of the basis of Indian religious belief by government action continues apace. The recent resurgence of site-specific Indian religions,' coinciding with stepped-up federal development of public lands,' highlights the dilemma of native worshipers in a system that does not recognize site-specific belief. Indian tribes are challenging development plans affecting sacred areas in previously undisturbed federal and state lands, claiming that the free exercise clause protects their religious interest in governmental property.5

How Did It All Begin

Abstract: Professor Berman's book tells a story within a story His central theme is the emergence of Western legal culture, but he places his narrative within the framework of a visionary scheme about the destiny of Western civilization This larger story is merely adumbrated in the book and not ripe for serious critical examination' But because Berman's larger story intersects with his fully developed narrower one, the all-encompassing scheme of the larger narrative must quickly be summarized before we turn to the proper subject matter of this review-Professor Berman's interpretation of the origins of Western legal culture Berman's thesis is that distinctively Western legal institutions came to life about nine centuries ago in a violent upheaval, or revolution, in which the Church of Rome established its independence from domination by em-

Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle

Abstract: Constitutional theory would be important no matter what constitution we had. It is especially important because we have the Constitution that we do. The Constitution that we have is riddled with provisions best described as indeterminate. They are indeterminate in a particular sense: One who understands the language and laws of the nation can nevertheless find many different meanings in these clauses unless provided with a clear set of interpretive rules. Providing these rules-and thereby providing the substantive underpinning for constitutional adjudication-is probably the most vital task that constitutional theory must perform. Conventional constitutional theory, however, is thought by some critics to be in extremis. It is said to be poisoned with value preferences disguised as neutral rules. There is no cure, these critics contend, because each conventional theory carries with it the same fatal disease. By setting forth rules of interpretation, modern constitutional theory seeks to set limits on the institution of judicial review. But according to the critics, principled

The False Promise of Worker Capitalism: Congress and the Leveraged Employee Stock Ownership Plan

Abstract: Employee stock ownership plans (ESOPs) are a form of statutory pension program designed to invest employee retirement assets in the stock of the employer.1 A leveraged ESOP borrows money to finance the stock purchase. As a congressionally sanctioned \"technique of corporate finance,\" 2 the leveraged ESOP program represents the leading legislative effort to date to transfer controlling equity blocks in American corporations from outside shareholders to workers. While the cost of the program's tax subsidies has not been reliably calculated, the foregone revenues to the Treasury could well exceed several billion dollars annually. 3

Rethinking the Modification of Child Custody Decrees

Abstract: Before they reach the age of eighteen, almost one-third of the children in the United States will experience the divorce of their parents.' Deservedly, considerable scholarly attention has been paid to what happens to those millions of children at the time of divorce. Members of the legal profession and social scientists have debated at length the functions and drawbacks of the \"best interests of the child\" standard traditionally used to decide custody upon divorce.2 Little attention, however, has been paid in the literature to the fact that

Relativism and Virtue

Abstract: One of the more gratifying responses a review can receive is to be taken seriously by the author of the book reviewed, especially when it is a critical review of a thoughtful book. A critical review is always likely to appear to be an affront, moving the author to be either aloofly silent or pugnaciously defensive. Hence, I was indeed pleased to discover that a second edition of Maclntyre's After Virtue' has recently appeared in which various critical points that I made in my review of the first edition2 are generously acknowledged and corrected or discussed. I would like to respond to some of that discussion. The discussion I have in mind occurs in the new chapter for this edition,where Maclntyre tries to reply to my argument that his position entails a moral relativism. In order to assess the adequacy of his reply, I should first make clear why Maclntyre should want to avoid this consequence. After all, not only is moral relativism not obviously false, it has also recently acquired some able defenders, as I pointed out in my review.\" Maclntyre devotes the opening part of his book to attacking what he calls \"emotivism,\" one of whose essential features is that moral disagreements between individuals cannot be rationally resolved. The widespread acceptance of emotivism that he claims to discern in our culture constitutes a crisis, threatening the coherence of the language of morality and moral criticism. Maclntyre's project is to sketch a way out of the disorder which emotivism generates. He claims that although emotivism reflects a conception of ethics that has dominated philosophical discussions in the past few centuries, there is an alternative conception of ethics which offers a way out of this situation. This involves an account of morality in terms of the virtues, whose content is given, in part, by a tradition. However, if this alternative entails relativism, then MacIntyre has not succeeded in what he sets himself out to do. This is because, as I tried to show in my review,' emotivism and relativism are on a par, as far as the rational irresolvability of