Alabama law review最新文献

{"title":"Democracy and Dysfunction: Rural Electric Cooperatives and the Surprising Persistence of the Separation of Ownership and Control","authors":"Randall S. Thomas, Debra C. Jeter, H. Wells","doi":"10.2139/SSRN.3155466","DOIUrl":"https://doi.org/10.2139/SSRN.3155466","url":null,"abstract":"Since the 1930s, corporate law scholarship has focused narrowly on the public corporation and the problem of the separation of ownership and control — a problem many now believe has been mitigated or even solved. With rare exceptions, scholars have paid far less heed to other business forms that still play important roles in the American economy. In this Article we examine a significant, and almost completely overlooked business form, the Rural Electrical Cooperative (REC). RECs were founded in a moment of optimism during the New Deal. As with other cooperatives, their organizational rules differed sharply from those of for-profit corporations. They were owned by their customers, with each customer member having one vote irrespective of their energy consumption -- and it was hoped these owners would provide active oversight of the REC’s managers and activities. The reality has proven otherwise. Corporate governance innovations of the last forty years have passed RECs by, leaving an organizational sector mired in governance dysfunctions stemming from the separation of ownership and control. Here we explain why RECs evolved as they did, and why New Deal planners seized on the cooperative form to electrify the countryside; how significant governance problems have persisted, largely unaddressed, from the 1930s to today; and how a change in corporate governance rules, one allowing for a market for corporate control in RECs, could fix some persistent problems in this still-important sector. Alternatively, we propose that RECs take up a new public role as rural broadband internet providers with a reinvigorated federal regulator to police governance failures.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"70 1","pages":"361"},"PeriodicalIF":0.0,"publicationDate":"2018-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3155466","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45633638","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine","authors":"Darren Lenard Hutchinson","doi":"10.2139/SSRN.2238733","DOIUrl":"https://doi.org/10.2139/SSRN.2238733","url":null,"abstract":"The Supreme Court utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictory. Nevertheless, this factor has become salient in recent equal protection cases brought by gays and lesbians. Indeed, the Court is currently reviewing a court of appeals case that applies this doctrine and finds that gays and lesbians constitute a quasi-suspect class. Recent scholarship and case law have addressed the inefficiencies of suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and the emerging scholarship and case law that respond to it. This Article offers two alternatives approaches that could inform a new theory of equal protection.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"65 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68019924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Boundaries of the Moral (and Legal) Community","authors":"B. Leiter","doi":"10.2139/SSRN.1930628","DOIUrl":"https://doi.org/10.2139/SSRN.1930628","url":null,"abstract":"Over the last 250 years both moral philosophy and ordinary moral opinion have witnessed a remarkable expansion of their conception of the “moral” community, that is, the community of creatures that are thought entitled to basic moral (and ultimately legal) consideration – whatever the precise details of what such consideration requires. “Being human” is what matters now in terms of membership in the moral community, not race, gender, religion, or, increasingly, sexual orientation. (Species membership – hence the “being human” – remains a barrier to entry, however.) How to explain these developments? According to “Whig Histories,” this is really a story of expanding moral knowledge. Just as we discovered that the movement of mid-size physical objects is governed by the laws of Newtonian mechanics, and that those same laws do not describe the behavior of quantum particles, so too we have discovered that chattel slavery is a grave moral wrong and that women have as much moral claim on the electoral vote as men. I argue against the Whig Histories in favor of non-Whig Histories that explain the expanding moral community in terms of biological, psychological, and economic developments, not increased moral knowledge. If the non-Whig Histories are correct, should we expect the “species barrier” to membership in the moral community to fall? I argue for a skeptical answer.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"64 1","pages":"511"},"PeriodicalIF":0.0,"publicationDate":"2012-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1930628","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67797710","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rise of Contingent Fee Representation in Patent Litigation","authors":"David L. Schwartz","doi":"10.2139/SSRN.1990651","DOIUrl":"https://doi.org/10.2139/SSRN.1990651","url":null,"abstract":"It is well known that contingent representation is on the rise in patent litigation. But why? And what are the lawyers in the field like? Although scholars have studied contingent litigation in other contexts — such as medical malpractice, personal injury, and products liability litigation — patent litigation has received almost no attention. This gap in the literature is unsettling because patent litigation is different from these other fields of contingent litigation in important and interesting ways. These differences include: patent litigation is much more uncertain; the costs of litigating claims are usually significantly higher; and patents, including their underlying infringement claims, are freely assignable. Absent in most other contingent litigation contexts, these characteristics of patent litigation shed light on the broader topics of litigation and contingency relationships in general.Drawing upon several sources of data, including in-depth interviews with over forty lawyers involved in contingent representation in patent litigation and examination of over forty contingent fee agreements, this Article provides the first comprehensive analysis of the rapid evolution of contingent representation in patent law. The development of contingent representation includes top-tier litigation firms recently transitioning to taking on high value contingent cases, small entrants representing plaintiffs in lower value cases, and numerous general practice firms experimenting with contingent patent litigation. These diverse players each select and litigate cases using varied methods, resulting in different levels of risk and reward. The Article uses the study of these players to discuss how and why attorney-client contingent relationships established in the nascent marketplace of patent contingent litigation differ from other types of contingent litigation, and what patent law can teach about contingent representation in general. It also lays the foundation for future quantitative research comparing the results of contingent and hourly billing representation.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"64 1","pages":"335-388"},"PeriodicalIF":0.0,"publicationDate":"2012-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67834396","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rules versus Standards: Competing Notions of Inconsistency Robustness in Patent Law","authors":"David S. Olson, S. Fusco","doi":"10.2139/SSRN.2031158","DOIUrl":"https://doi.org/10.2139/SSRN.2031158","url":null,"abstract":"This Article applies a new paradigm from the field of computer science — inconsistency robustness (IR) — in order to analyze the competing ways in which the Supreme Court and Federal Circuit craft patent law standards and rules. The IR paradigm is a shift from the previous paradigm of inconsistency elimination. The new IR paradigm recognizes that modern, complex information systems must perform notwithstanding persistent and continuous inconsistencies. The focus on IR encourages system designers to recognize the reality of persistent inconsistency when building robust systems that can perform reliably. Legal systems regularly process a great deal of complexity and inconsistency, and thus, by necessity, have always been structured to be inconsistency robust. Accordingly, applying insights from the formal IR paradigm is helpful in analyzing the effective functioning of legal systems. This Article is the first legal article to formally utilize IR in analyzing the legal system. By using IR analysis, the article identifies and analyzes a previously under analyzed persistent pattern within patent law. Specifically, the article shows via example in five separate areas of patent law that the Federal Circuit and Supreme Court repeatedly diverge on the adoption of rules versus standards in patent law. The Article shows that this pattern can be explained by viewing the two courts as rational systems administrators attempting to maintain an inconsistency robust patent system from each of their perspectives as systems administrators. The Article further shows that if the courts adopt a holistic view of IR, they can craft more optimal patent law by taking into account the costs and benefits of the law to all participants and administrators of the patent law system.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"64 1","pages":"647-696"},"PeriodicalIF":0.0,"publicationDate":"2012-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67870028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Market for Legal Innovation: Law and Economics in Europe and the United States","authors":"Nuno Garoupa, T. Ulen","doi":"10.2139/SSRN.972360","DOIUrl":"https://doi.org/10.2139/SSRN.972360","url":null,"abstract":"There have been a large number of innovations in legal scholarship in the U.S. legal academy over the past 25 or so years and very few from legal scholars in other parts of the world. For instance, because both of us work in the area of law and economics, we were both acutely aware of the large differences in the receptivity to law and economics as between the U.S. and Europe. The U.S. legal academy has generously embraced law and economics (and some other legal innovations), while Europe (and the rest of the world) has not. Why has the U.S. led the world in the production and adoption of legal scholarly innovations? This Article seeks to answer that question generally and with particular reference to law and economics. In Part II we deal with two definitional issues - what we mean by a \"legal innovation\" and what counts as \"law and economics.\" The scholarly innovations on which we focus are new methods of looking at many areas of the law, such as feminist jurisprudence, or the articulation of the principles and boundaries of an entire new area of law, such as elder law. By \"law and economics,\" we mean the application of economic analysis to any of the area to which its application would not be obvious. Then in Part III we offer a series of anecdotes and empirical studies designed to show that law and economics is much more prominent in U.S. legal scholarship than in European legal scholarship. We then seek, in Part IV, explanations for the differences between the U.S. and European legal academies in their production and adoption of legal scholarship innovations generally and with respect to law and economics particularly. Our central claim is that it is the competitiveness of higher and legal education that is the principal explanation for the scholarly innovativeness of the U.S. and the lack of competition (and the consequent lack of an incentive to innovate) in European higher and legal education that explains the differences. We further hypothesize that the production and adoption of law and economics are attractive only to those who have experienced a prior legal scholarly innovation - legal realism. We draw a clear line of intellectual heritage from legal realism to law and economics. Before settling on competition and legal realism as the principal explanations for the production and adoption of legal scholarship innovations, we canvass (and reject) a large number of alternative explanations, such as political ideology, money, the differences between common and civil law systems, the structure of legal education, and more. In Part V we draw a connection between the standard economic theory of innovation and diffusion and our observations in the prior four sections of the Article. That economic theory of innovation and diffusion identifies three factors - demand, supply, and market structure - as determining the presence and pace of innovation and diffusion. We relate each of those factors to observable differences between the U.S. and Euro","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"59 1","pages":"1555-1633"},"PeriodicalIF":0.0,"publicationDate":"2007-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67917488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"New Urbanist Zoning for Dummies","authors":"Michael E Lewyn","doi":"10.2139/SSRN.873903","DOIUrl":"https://doi.org/10.2139/SSRN.873903","url":null,"abstract":"For most of the 20th century, American land use regulation sought to separate different types of land uses from each other and to reduce population density, while American parking and street design regulation sought to facilitate driving by mandating wide streets and forcing landlords and businesses to build parking lots for their tenants and customers. These policies have helped to create a pattern of land use often described as \"sprawl\": low-density, automobile-oriented development. Where offices and shops are in a different zone of a city from low-density housing, residents will often be unable to live within walking distances of such facilities. And where parking lots and wide streets surround those offices and shops, pedestrians must cross dangerously wide streets and then cross a sea of parking in order to reach those buildings. In recent decades, a group of architects generally known as the New Urbanist movement has sought to reform both conventional land use regulation and the sprawl that it generates. New Urbanists seek to build compact, walkable, mixed-use neighborhoods. Because existing zoning is hostile to New Urbanism, New Urbanists have begun to develop alternative zoning codes codifying New Urbanist principles. For example, Duany Plater-Zyberk & Company (DPZ), a leading New Urbanist architectural firm, has drafted a model code known as the SmartCode. The purpose of this article is to compare New Urbanist zoning to sprawl-oriented conventional zoning, using the SmartCode and two conventional zoning codes as case studies. The article concludes that the SmartCode is in many ways less restrictive than existing zoning, and shows how the SmartCode could be made even more libertarian yet at the same time even more pedestrian-friendly.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"13 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67848811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Thomas Aquinas and the Metaphysics of Law","authors":"William S. Brewbaker","doi":"10.2139/SSRN.898941","DOIUrl":"https://doi.org/10.2139/SSRN.898941","url":null,"abstract":"Despite modernity's longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts - Thomas Aquinas' still-widely-read Treatise on Law - with a view toward tracing the influence of Thomas' metaphysical presuppositions. This article shows that Thomas' account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas' hierarchical view of reality exposes tensions between Thomas' \"top-down\" account of law and his sophisticated \"bottom-up\" observations. For example, Thomas grounds human law's authority in its foundation in the \"higher\" natural and eternal laws. On the other hand, he is well aware that many if not most legal questions involve \"determination of particulars\" - the resolution of questions that might reasonably be answered in more than one way. Thomas' metaphysics sometimes works against his inclination to give place to human freedom in the creation of law. Thomas' metaphysical approach also raises important questions for contemporary legal theory. His insistence on addressing the question of law's ontological status, for example, challenges the reductionism of much contemporary jurisprudence and provides a vocabulary for accounting for the wide variety of analytical approaches legal philosophers employ.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"58 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67865259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Indignity of Federal Wildlife Habitat Law","authors":"J. Colburn","doi":"10.2139/SSRN.636082","DOIUrl":"https://doi.org/10.2139/SSRN.636082","url":null,"abstract":"In this paper I argue that the agencies charged under federal law with the protection and restoration of wildlife populations are to a fault too rational, too deliberative, too sequential in operation, and too focused on putting various tracts of federal realty on highly protective pedestals. To an even greater degree than modern legislation, legal change through regulation is a process weighted down and incapacitated by its own importance, its own dignity. Thus, the overall critique is that our administrative system's commitments to rationality and public participation per se render it incompatible with the societal objective of wildlife habitat protection. In this connection, the federal law of wildlife habitat exemplifies a larger condition of the administrative system perhaps better than any other field of regulation today. The modern practice of conservation biology has shown how important continuous adaptation is to success and how provisional all judgments must be throughout implementation. Federal lands managers, the Fish and Wildlife Service, and the Council on Environmental Quality have all known as much for years. Yet these institutions have done little to adapt their administrative architectures accordingly. As conservation biologists envision this practice, it is reflexive and pragmatic, i.e., continuously self-critical and open to fundamental revisions in light of what is learned in execution. Yet, as the agencies have actually implemented their habitat conservation mandates, they have been neither reflexive or pragmatic - largely as a result of the legal structure of this field. In this paper, I highlight the lack of fit between that structure and this public policy objective and question whether any changes at the federal level could make it much better.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"51 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2004-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67781636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hans Kelsen and the Logic of Legal Systems","authors":"Michael S. Green","doi":"10.2139/SSRN.455620","DOIUrl":"https://doi.org/10.2139/SSRN.455620","url":null,"abstract":"Hans Kelsen's formalism and Kantianism have been barriers to an appreciation of his work in the United States. This article offers a sympathetic reading of Kelsen's approach in legal theory by drawing analogies between it and the writings of Gottlob Frege. For Frege, the subject matter of logic is the necessary relations between linguistic meanings. These relations can be seen as necessary only on the assumption that linguistic meanings are abstract objects that cannot be reduced to anything empirical. For this reason Frege rejected psychologism in logic. Like many other late-nineteenth century anti-psychologists, Frege offered a Neo-Kantian account of how non-empirical knowledge of meanings is possible. Analogously, Kelsen argued that legal meanings are abstract objects. Kelsen proposed an analysis of the necessary relations between legal meanings - a logic of legal systems - that is similar to the Fregean logician's account of language. And like the logical anti-psychologists, Kelsen offered a Neo-Kantian account of how knowledge of legal meanings is possible. Although I do not undertake to defend the details of Kelsen's approach, I hope to make his third way between empiricist and natural law theories approaches in jurisprudence more understandable and attractive to American audiences.","PeriodicalId":80402,"journal":{"name":"Alabama law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2003-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}