Yale Law Journal最新文献

{"title":"Consumerism Versus Producerism: A Study in Comparative Law","authors":"James Q. Whitman","doi":"10.2307/20455797","DOIUrl":"https://doi.org/10.2307/20455797","url":null,"abstract":"The spread ofAmerican-style \"consumerism\" is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald's, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) turns largely on the question of whether legal systems everywhere must inevitably follow the American model. Despite the global importance of the consumerism debates, though, comparative lawyers have found little to say. In an effort to develop an analytic comparative law approach to the problem of global consumerism, this Article proposes to revive an analytic distinction that was common in the 1930s: the distinction between \"consumerism\" and \"producerism.\" A producerist legal order tends to revolve around rights and interests on the supply side of the market: it focuses on the interest of some class of producers or distributors (such as workers, small shopkeepers, or the competitors in a given industry). A consumerist legal order, by contrast, tends to focus on rights and interests on the demand side of the market-in particular, on the consumer economic interest, understood primarily as an interest in competitive prices. Producerist legal orders can take forms quite different from consumerist ones, both when it comes to economic regulation in the law of antitrust and retail and when it comes to fundamental conceptions of the nature of rights. The distinction between consumerism and producerism involves some real complexities, and it must be used with care. Nevertheless, this Article argues, it is of fundamental importance for classifying and analyzing legal systems, and in particular for understanding basic and persistent differences between continental Europe and the United States. AUTHOR. Ford Foundation Professor of Comparative and Foreign Law, Yale Law School. Earlier versions of this paper were presented at workshops at Columbia, Cornell, Duke, and NYU law schools. I am grateful to participants in all four forums for their comments. I also gratefully acknowledge detailed and useful comments by Ian Ayres, Giacinto della Cananea, Rochelle Dreyfuss, Eleanor Fox, David Gerber, Christian Joerges, Anette Kur, Susanne Lepsius, Mike Levine, Joseph Raz, Alan Schwartz, Frank Upham, and John Witt. HeinOnline -117 Yale L.J. 34","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"2 1","pages":"340"},"PeriodicalIF":6.4,"publicationDate":"2007-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79174589","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Piercing China's Corporate Veil: Open Questions from the New Company Law","authors":"M. Wu","doi":"10.2307/20455793","DOIUrl":"https://doi.org/10.2307/20455793","url":null,"abstract":"In 2006, China undertook a major overhaul of its legal framework governing corporations by implementing a new Company Law.' Much of the previous Company Law was revised or eliminated, with many new provisions added This development was much anticipated by Chinese and foreigners alike, as China's previous corporate law was unable to keep pace with its fastgrowing economy.3 One of the highlights of the new Company Law is its formal establishment of the concept of \"piercing the corporate veil\" in Chinese law. The concept of piercing the corporate veil is a longstanding feature of the corporate law of capitalist economies. An important corporate form in such economies is the limited liability corporation (LLC), a key attribute of which is that shareholders are not personally liable for corporate debts in excess of their investment in the LLC. Creditors seeldng payment of debts or tort victims seeking redress generally can reach only the corporation's assets, not those of its shareholders. At times, however, courts ignore this corporate fiction and treat a corporation's debt as the debt of the corporation's shareholders. In doing so, courts \"pierce the corporate veil.\"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"33 1","pages":"329"},"PeriodicalIF":6.4,"publicationDate":"2007-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84528973","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Realizing the Potential of the Joint Harassment/Retaliation Claim","authors":"Eisha Jain","doi":"10.2307/20455785","DOIUrl":"https://doi.org/10.2307/20455785","url":null,"abstract":"Retaliatory and discriminatory motives commonly overlap in the workplace, but courts often disaggregate retaliatory motives from discriminatory ones when evaluating Title VII claims. This Note critiques the rationales behind disaggregation and calls for courts to understand post-complaint behavior as constituting both retaliation and escalated harassment.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"191 1","pages":"120"},"PeriodicalIF":6.4,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72816959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"\"I Did Not Come Here To Defend Myself': Responding to War on Terror Detainees' Attempts To Dismiss Counsel and Boycott the Trial","authors":"M. Bloom","doi":"10.2307/20455784","DOIUrl":"https://doi.org/10.2307/20455784","url":null,"abstract":"A significant portion of the war on terror detainees who have been charged at Guantanamo have announced their intentions to dismiss their attorneys, to waive their right to be present at their trials, or to take both actions simultaneously so that their interests will not be represented. This Note demonstrates that strong justifications, rooted in international and domestic legal rules and precedent, support honoring the detainees’ requests. Yet the military tribunal proceedings are designed to follow the adversarial model to achieve just outcomes; granting the detainees’ procedural requests can, in certain situations, undermine the ability of the military commissions to reach just outcomes in favor of the personal whims of the detainees. When a detainee’s procedural request threatens to undermine the adversarial model, I propose that military adjudicators appoint an amicus curiae counsel to provide sufficient process on behalf of the tribunal. author. Yale Law School, J.D. expected 2008; Yale University, B.A. 2005. The author is especially indebted to Professor Michael Wishnie for his support and advice throughout this project. He also wishes to thank Maj. Thomas Fleener and Lt. Cmdr. William C. Kuebler of the U.S. Department of Defense Office of Military Commissions for their firsthand insights; Professor Muneer Ahmad, Peter Elikann, Justice Joette Katz, Justice Richard Palmer, Priti Patel, and Katherine Wiltenburg Todrys for their comments on earlier drafts; and Benjamin Siracusa for his expert editing. 0070.BLOOM 10/25/2007 10:58 AM i did not come here to defend myself","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"43 1","pages":"70"},"PeriodicalIF":6.4,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73678591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cleaning House: Congressional Commissioners for Standards","authors":"Joseph Chafetz","doi":"10.2307/20455786","DOIUrl":"https://doi.org/10.2307/20455786","url":null,"abstract":"Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all. This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it would reinforce the public perception that Congress is simply unable to control itself). However, the congressional ethics committees have proven unwilling or unable to function as effective disciplinary bodies. The Comment therefore proposes that each house create its own Commissioner for Standards, modeled on the Parliamentary Commissioner for Standards in Britain. The Comment analyzes the main features of the British office and suggests a number of improvements for adoption in the United States. The institutional design described in the Comment has the dual virtues of keeping ethics enforcement within the houses of Congress while simultaneously minimizing the possibility that ethics enforcers will be captured by those they are meant to regulate.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"54 1","pages":"165"},"PeriodicalIF":6.4,"publicationDate":"2007-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90841641","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sheltering Deprivations: FEMA, Section 408 Housing, and Procedural Redesign","authors":"Damian T. Williams","doi":"10.2307/20455779","DOIUrl":"https://doi.org/10.2307/20455779","url":null,"abstract":"Having weathered nearly two years of unprecedented disasters and unrelenting public criticism, the Federal Emergency Management Agency (FEMA) is the most indispensable—and most distrusted—pillar of the nation’s emergency management infrastructure. A constellation of well-documented failures, mostly in the wake of Hurricane Katrina, has created an image of an agency adrift. Yet FEMA’s role in the Gulf Coast recovery effort has only intensified; the agency is now responsible for sheltering over a million disaster survivors. Section 408 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (“Stafford Act”) forms the core of the federal government’s emergency housing regime. The provision guarantees up to eighteen months of housing benefits for all disaster survivors—regardless of their means—who can demonstrate substantial damage to their primary residence. As the agency charged with administering this program, FEMA has earned stinging rebukes from survivors and lawmakers for erroneously denying thousands of meritorious housing requests while paying out millions of dollars in fraudulent claims. FEMA’s mistakes are in part the product of two mutually reinforcing","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"105 1","pages":"5"},"PeriodicalIF":6.4,"publicationDate":"2007-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80687728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Designing a Constitution-Drafting Process: Lessons from Kenya","authors":"Alicia Bannon","doi":"10.2307/20455777","DOIUrl":"https://doi.org/10.2307/20455777","url":null,"abstract":"This Note examines Kenya's recent constitution-writing experience as a case study for designing constitution-drafting processes in emerging democracies. Eight years after Kenya's constitutional review process began, and after a highly acrimonious drafting period, Kenyans roundly defeated a proposed new constitution in a national referendum. This Note describes Kenya's experience and considers six lessons on designing a constitution-drafting process. It then proposes how a constitution-drafting process in a country like Kenya might have been more effectively designed. AUTHOR. Yale Law School, J.D. expected 2007; Harvard University, A.B. 2001. I would like to thank Marie Boyd for her thoughtful editing of this Note, and Molly Beutz, Amy Chua, Makau Mutua, and Katherine Wiltenburg Todrys for their helpful comments. Thanks also to Willy Mutunga and Ronald Sullivan for providing useful background on Kenya's constitutionwriting experience. Finally, thanks to Mom, Dad, Pamela, and Omar for their love and support.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"21 1","pages":"3"},"PeriodicalIF":6.4,"publicationDate":"2007-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86786804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On Target? The Israeli Supreme Court and the Expansion of Targeted Killings","authors":"K. Eichensehr","doi":"10.2307/20455778","DOIUrl":"https://doi.org/10.2307/20455778","url":null,"abstract":"After four years of consideration, the Israeli Supreme Court recently issued the world's first judicial decision on targeted killings in Public Committee Against Torture in Israel v. Government of Israel (PCATI). In PCATI, the court held that terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities. But the court also expanded the traditional definition of direct participation and the time period during which civilians may lawfully be attacked. By disregarding the direct participation requirement's important evidentiary function, the court weakened the protections that international law affords to all civilians, not just to terrorists.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"28 1","pages":"4"},"PeriodicalIF":6.4,"publicationDate":"2007-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83739059","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Marriage of Family Law and Private Judging in California","authors":"Sheila Nagaraj","doi":"10.2307/20455769","DOIUrl":"https://doi.org/10.2307/20455769","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"6 1","pages":"5"},"PeriodicalIF":6.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75265438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Article III En Banc: The Judicial Conference as an Advisory Intercircuit Court of Appeals","authors":"J. Scott","doi":"10.2307/20455770","DOIUrl":"https://doi.org/10.2307/20455770","url":null,"abstract":"Many judges and commentators have advocated for an Intercircuit Court of Appeals to resolve circuit splits. In recent years, the Judicial Conference of the United States has publicly endorsed one circuit's interpretation of the law over another's, as an Intercircuit Court of Appeals might, but without binding effect. This Comment calls for a reevaluation of the Judicial Conference's role in the federal judicial system. It concludes that although Conference support of legislation codifying one circuit's view over another's may enhance the efficiency and consistency of the legal system, such activity is inconsistent with judicial precepts of independence, impartiality, and nonpartisanship, and should therefore be avoided.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"389 1","pages":"6"},"PeriodicalIF":6.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82681964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}