Washington and Lee law review最新文献

{"title":"Race to the Top of the Corporate Ladder: What Minorities Do When They Get There","authors":"Devon W. Carbado, G. Gulati","doi":"10.1108/S0193-5895(2009)0000024013","DOIUrl":"https://doi.org/10.1108/S0193-5895(2009)0000024013","url":null,"abstract":"Racing to the top of the corporate hierarchy is difficult, no matter how qualified or capable the candidate. Producing more widgets than one's competitors is not enough. Negotiating the political landscape of the institution is also required. More specifically, individual corporate officers have to be appeased, powerful interest groups have to be co-opted and made allies, and competitors have to be undermined or eliminated. The more bureaucratic the organization and the more opaque the promotion process, the more important this institutional game to climbing the corporate ladder. This chapter identifies the kind of racial minorities or racial types who are likely to play this game well and, consequently, race to the top of the corporation. It then explains why these racial types might not have the racial commitment, or feel institutionally empowered, to lift other people of color as they climb the corporate ladder.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"61 1","pages":"1645"},"PeriodicalIF":0.0,"publicationDate":"2009-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1108/S0193-5895(2009)0000024013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"62304713","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 Legitimate Rights of Public Shareholders","authors":"Ezra Wasserman Mitchell","doi":"10.2139/ssrn.1352025","DOIUrl":"https://doi.org/10.2139/ssrn.1352025","url":null,"abstract":"In recent years there has been significant ongoing academic debate over the expansion of public shareholders' participation rights in corporate governance. The debate has accompanied a dramatic increase in institutional shareholder and hedge fund activism attempting to influence the conduct of corporate affairs. The legitimacy of shareholder participation rights depends upon the actual role public shareholders play in contributing to the corporation's function of providing goods and services and, ultimately, to economic growth and social welfare. Nobody in the debate has stopped to examine this question. This paper presents original empirical evidence that demonstrates that public shareholders do not, on net, contribute capital to finance industrial production, and in fact are net consumers of corporate equity. Moreover, their investment incentives significantly distort the behavior of corporate managers who place strong emphasis on stock price at the expense of long-term business health, a fact that has played some role in the current global financial debacle. The logical conclusion is that public shareholders' rights should, ideally, be eliminated, and certainly not expanded or enhanced.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"24 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2009-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68167394","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":"'Big Love?' The Recognition of Customary Marriages in South Africa","authors":"Penelope E. Andrews","doi":"10.4324/9781315091464-9","DOIUrl":"https://doi.org/10.4324/9781315091464-9","url":null,"abstract":"This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"64 1","pages":"1483"},"PeriodicalIF":0.0,"publicationDate":"2008-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628634","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":"Reconceptualizing Competence: An Appeal","authors":"Mae C. Quinn","doi":"10.2139/ssrn.1067241","DOIUrl":"https://doi.org/10.2139/ssrn.1067241","url":null,"abstract":"This article builds on contemporary critiques of the justice system's treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed in legal scholarship - the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of the concept of competence to account of all phases of criminal proceedings - trials, appeals, and beyond. Specifically it urges the American Bar Association (ABA), in the wake of the Supreme Court's decision earlier this year in Indiana v. Edwards, to provide more coherent, contextualized, and client-centered Criminal Justice Mental Health Standards to guide courts and practitioners dealing with impaired defendants at all stages of the criminal process. By redrafting its Guidelines in their entirety, the ABA can begin to untangle the mess that has become the United States system of criminal mental health law and policy, and ensure that impaired defendants are provided with their day in appellate court.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"66 1","pages":"259"},"PeriodicalIF":0.0,"publicationDate":"2007-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68131864","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":"Tunisia at the Forefront of the Arab World: Two Waves of Gender Legislation","authors":"M. Charrad","doi":"10.4324/9780203851579-16","DOIUrl":"https://doi.org/10.4324/9780203851579-16","url":null,"abstract":"Table of ContentsI. Introduction 1514II. How Tunisia Compares with Other Arab Countries 1515III. The Initial Step: Code of Personal Status of 1956 1518IV. The second Major Wave: Reforms of 1993 1522V. Conclusion 1526I. IntroductionBeginning in the 1950s and continuing thereafter, Tunisia has implemented gender legislation expanding women's rights in several areas, especially in family law. A steady stream of reforms has followed the first and ground breaking phase, which occurred in the mid-1950s, at the time of the formation of a national state in the aftermath of independence from French colonial rule. The promulgation of the Tunisian Code of Personal Status1 in 1956 constituted a radical shift in the interpretation of Islamic laws with regard to the family and set a stage for further developments. Anothermajorphase occurred in the 1990s with reforms ofcitizenship law as embodied in the Tunisian Code ofNationaUty.2 As a result of these two major phases, Tunisia has been at the forefront of \"woman friendly\" legislative changes in the Arab-Muslim world and is widely recognized as such.3When we consider reforms of family law, three key questions come to mind. What is the substance of the new laws, and what rights do tiiey confer to women? What are the socio-political conditions that make the reforms possible or encourage policy makers to make them? Once new laws are promulgated, how are the provisions put into practice, and what effects do they have on the Uves of individual women? At a time when issues of women's rights are not only highly debated, but also sometimes violently contested in Muslim countries, the Tunisian case requires examination. The consistency in gender legislation over half a century is itself a remarkable development This Article documents the two major phases of reforms in favor of women's rights in Tunisia and outlines the conditions that perrrdtted or encouraged me continuity over the last half century. While the third question is beyond the scope of this Article, the discussion focuses on the first two questions.The first wave of reforms transformed the legal construction of gender roles within the family.4 The second wave redefined the conditions for the transmission of Tunisian citizenship.5 The evidence suggests that different political configurations were conducive to reform in different periods and that a careful analysis of the political forces at work is necessary to develop an understanding of each particular reformist phase. In painting social change in broad strokes, I see the initial and pioneering phase of the 1950s as a reform from above resulting from the actions of a newly formed national state interested in building a new society at the end of colonial rule.6 By contrast, the role of women's agency came into play in Tunisia starting in the 1980s and became more robust in the 1990s.7 From the 1980s to today, women's rights advocates have contributed to the making of gender legislation either through direct ","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"79 1","pages":"1513"},"PeriodicalIF":0.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70598823","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":"Shareholders as Proxies: The Contours of Shareholder Democracy","authors":"Dalia Tsuk Mitchell","doi":"10.4324/9781315574288-8","DOIUrl":"https://doi.org/10.4324/9781315574288-8","url":null,"abstract":"This article explores the long-standing suspicion of the individual shareholder and the corresponding ambivalence about shareholder democracy as it is seen in conversations about the shareholder's role in the modern public corporation throughout the twentieth century. The article examines two competing conceptions of the shareholder's role in the corporation: one focuses on the role of shareholders as investors, the other emphasizes the role of shareholders as potential participants in corporate management. I argue that scholars and reformers who have conceived of shareholders as investors limited the locus of shareholder democracy to the market. The writings of Louis Brandeis, Henry Manne, and Chancellor Allen offer examples of this vision. At the same time, scholars and reformers who argued that shareholders should have a more active role in corporate management (including William Ripley, Adolf Berle, William Douglas, and the early New Dealers) were reluctant to give shareholders meaningful access to the corporate decision-making processes. They feared not only that shareholders were too passive to participate in corporate management, but also that they could not be trusted to make the correct decisions. For the most part, these scholars ended up using the rhetoric of shareholder democracy (and the shareholders) as a proxy to achieving other goals. In the course of the twentieth century, these scholars' goals shifted from taming the power of the control group to constraining management to legitimating managerial power. More important, because they refused truly to empower shareholders, these scholars' attempts presumably to promote shareholder democracy ultimately emptied the idea of shareholder democracy of content. Gradually, the rhetoric of democracy became an apology for the status quo.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70650658","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":"Dividends as a Substitute for Corporate Law: The Separation of Ownership and Control in the United Kingdom","authors":"B. Cheffins","doi":"10.2139/SSRN.906068","DOIUrl":"https://doi.org/10.2139/SSRN.906068","url":null,"abstract":"The \"law matters\" thesis implies countries will not develop a robust stock market or diffuse corporate ownership structures unless laws are in place that curtail the extraction of private benefits of control by large shareholders and address information asymmetries from which outside investors suffer. In Britain, however, the law did not provide extensive protection to shareholders when ownership separated from control, which suggests \"investor friendly\" corporate and securities law is not a necessary condition for a transition from family capitalism to a corporate economy characterized by widely held firms. If law did not provide the foundation for the unwinding of family ownership what did? This paper argues that the dividend policy of publicly quoted firms played a significant role. Essentially, dividends mimicked the role that the \"law matters\" thesis attributes to corporate and securities law, namely constraining corporate insiders and supplying information flow to investors. In so doing, dividends helped to provide the platform for ownership to separate from control when law did not provide substantial protection for outside shareholders.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"63 1","pages":"1273"},"PeriodicalIF":0.0,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.906068","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67871278","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":"Internet Hate Speech: The European Framework and the Emerging American Haven","authors":"Christopher D. Van Blarcum","doi":"10.4324/9781315095493-12","DOIUrl":"https://doi.org/10.4324/9781315095493-12","url":null,"abstract":"In this advance, the frontier is the outer edge of the wave-the meeting point between savagery and civilization.Frederick Jackson Turner, The Closing of the American Frontier.1I. IntroductionThe civilization of the Internet has been the great quandary facing Internet regulators over the past decade. The Internet, like Turner's frontier,2 was not a tabula rasa-at its formation, traditional laws were still available.3 But the Internet raised new problems that made the enforcement of old laws problematic, and the Internet soon developed its reputation as an entity free from government regulation.4 The greatest obstacles to enforcement of traditional laws are the Internet's anonymity and its multijurisdictionality.5 Anonymity makes it hard for local prosecutors and victims to discover the identity of the party responsible for illegal conduct.6 Even if the party can be identified, however, multijurisdictionality means that the prosecutor or victim may not have jurisdiction or face great obstacles in bringing suit against the offending party.7The problem with enforcement of the inherited laws was not so much a product of a defect in the language of the laws as it was a product of the inherent structure of the Internet.8 As a result, it should come as no surprise that despite unilateral efforts by the United States and almost every other nation to attempt to civilize the Internet, \"the closing of the Internet frontier\" remains far from a reality. Although governments have extended traditional laws to the Internet and have attempted to pass new laws regulating the Internet, these laws have had limited effectiveness reigning in unwanted conduct.9The global accessibility of information on the Internet allows an individual or a business that disagrees with the rules in one jurisdiction to move to a more lenient country and resume its business with its website remaining accessible for viewing in the country it fled.10 The global nature of the Internet results in those countries with less civilized Internet standards becoming havens for actors who wish to continue their \"savage\" manners untouched by the laws of the objecting country.The \"haven\" problem can generally be avoided in two ways. The first is for the victimized country to attempt to block odious content from reaching its Internet browsers. Spain has recently implemented this approach by passing legislation authorizing judges to block sites that do not comply with Spanish national law. ' ' This approach, however, is onerous on the victimized country, as it forces the country to search out the content and block it, without placing a deterrent on the producer of the content to refrain from putting the content on the Internet in the first place.The other option to solve the \"haven\" problem is in the form of regional and multilateral efforts to regulate the Internet. The greatest benefit of a multilateral compact is its ability to negate the multijurisdiction problem. If the offending party is located in","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"62 1","pages":"327-376"},"PeriodicalIF":0.0,"publicationDate":"2005-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70630098","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":"Saving Section 5: Lessons from Consent Decrees and Ex parte Young","authors":"Pratik A. Shah","doi":"10.2139/SSRN.688664","DOIUrl":"https://doi.org/10.2139/SSRN.688664","url":null,"abstract":"This Article compares the relatively broad federal court authority to enter relief against States under Ex parte Young with Congress's more limited authority to enact enforcement legislation (namely civil rights statutes) against the States under Section 5 of the Fourteenth Amendment. By exploring these two bodies of law under the same rubric, the Article exposes the unsupportable nature of the Supreme Court's jurisprudence in this area - a jurisprudence that grants considerable discretion to federal district court judges to order prophylactic relief for federal-law violations by States while narrowly limiting Congressional power to prevent or remedy such conduct. The inconsistency is most stark in the consent decree context, where Supreme Court doctrine effectively permits district courts unchecked authority to enter and enforce prophylactic remedies against States. This inconsistent treatment is problematic from both federalism and separation-of-powers perspectives. The tension is best resolved, I argue, not by reducing federal court authority under Ex parte Young but rather by recognizing the constitutionally-mandated, institutionally-justified, and democratically-sanctioned role of Congress in fashioning remedial legislation under Section 5 of the Fourteenth Amendment. Toward that end, the Article suggests the deferential approach promulgated in the Supreme Court's 2004 decision in Frew v. Hawkins for determining the enforceability of consent decrees against States as a model for evaluating Section 5 legislation. Such an approach would accord Congress the necessary discretion wielded by district court judges in resolving the complex and serious problems created by a State's defiance of federal law.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"27 1","pages":"1001"},"PeriodicalIF":0.0,"publicationDate":"2005-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67801547","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":"A Normative Theory of Bankruptcy Law: Bankruptcy as (is) Civil Procedure","authors":"C. Mooney","doi":"10.2139/SSRN.425120","DOIUrl":"https://doi.org/10.2139/SSRN.425120","url":null,"abstract":"This paper develops a normative theory of bankruptcy law. The core of the theory is that bankruptcy law exists in order to maximize the recoveries of and benefits for those who have legal entitlements (\"rightsholders\") in respect of a financially distressed debtor. It recognizes that bankruptcy law in the United States is a branch of civil procedure, in general, and the jurisdiction of federal courts, in particular; hence, I call the theory \"procedure theory.\" Procedure theory holds that it generally is wrong in bankruptcy to redistribute a debtor's wealth away from its rightsholders to benefit third-party interests, such as at-will employees and the general community. It also is wrong to rearrange priorities in bankruptcy as among a debtor's rightsholders in a way that is inconsistent with nonbankruptcy entitlements. Procedure theory explains what bankruptcy law is supposed to achieve. It does not address how bankruptcy law is to achieve its proper ends (e.g., status quo, adoption of market-based or contract-based structures to maximize wealth, etc.).Procedure theory draws support from three perspectives. First, it argues that it simply is incoherent to provide different substantive rules in bankruptcy when those substantive rules are equally applicable outside bankruptcy (e.g., an employer's right to close a plant or a nonbankruptcy priority rule). This incoherence offends notions of justice as well as Dworkin's value of \"liberty.\" Second, procedure theory is supported by the Erie doctrine in federal courts and considerations of federalism. Basic substantive law rules should not vary depending on the forum in which a proceeding is conducted (e.g., state court or bankruptcy court). Third, a public choice analysis reveals the enormous power of the bankruptcy bar over bankruptcy law, as formulated by Congress or as implemented in the courts. The Judiciary Committees in Congress and the bankruptcy courts, populated by bankruptcy mavens, are improper venues for the development of baseline legal principles that are not bankruptcy specific.If there is a justification for bankruptcy law it must be that, as a collective proceeding, it can maximize or enhance recoveries and benefits for rightsholders when compared to nonbankruptcy law. The paper finally examines a number of important features of United States bankruptcy law that conflict with (or at least appear to conflict with) procedure theory. It generally rationalizes procedure theory with several of these features, including the concept of \"property of the estate,\" the \"claims\" that are recognized in bankruptcy, the \"automatic stay,\" pro rata sharing among creditors, and the trustee's avoidance powers, among others. In several cases procedure theory calls for a modification of current law.","PeriodicalId":83483,"journal":{"name":"Washington and Lee law review","volume":"61 1","pages":"931"},"PeriodicalIF":0.0,"publicationDate":"2004-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68747879","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}