NewYorkUniversity
LawReview
Current Issue

Volume 71, Number 6

December 1996
Articles

When Reasonable Minds Differ

Linda Ross Meyer

In this Article ProfessorMeyer examines legal indeterminacy in the contexts of Rule 11 and qualified immunity doctrine, two are as in which the law acknowledges its own indeterminacy. Drawing from both legal theory and legal practice, she finds that legal indeterminacy serves important purposes as a kind of legal practice, rather than as a description of legal practice. Indeterminacy preserves the legitimacy of the law, Professor Meyer concludes, because law is a practice in time. In the Rule 11 context, she argues, legal indeterminacy protects lawyers who make losing arguments about real harms and important values in order to preserve those arguments for possible future law. In the qualified immunity context recognizing legal indeterminacy protects government officials who, because of gaps or ambiguities in the law, have not had fair notice that their past actions violate the law. The different temporal focuses explain why indeterminacy looks somewhat different in the two contexts. Because Rule 11 protects the future of the law–the possibilities that have not yet been clarified–the doctrine tends to take a “radical” approach to indeterminacy. Since qualified immunity doctrine is concerned with the past aspect of law, it tends to be more positivist: law is what judges have said it is, and law Is indeterminate where there are “legal gaps” and no court has articulated a rule. In some cases, Professor Meyer contends, such a positivist approach causes courts to lose sight of the fact that some law is not written because it has never needed to be but is taken for granted as an element of obvious, universal human norms.

A New Approach to the Regulation of Trading Across Securities Markets

Yakov Amihud, Haim Mendelson

In this Article, Professors Amihud and Mendelson propose that a securities issuer should have the exclusive right to determine in which markets its securities will be traded, in contrast to the current regulatory scheme under which markets may unilaterally enable trading in securities without issuer consent. Professors Amihud and Mendelson demonstrate that the trading regime of a security affects its liquidity, and consequently its value, and that multimarket trading by some securities holders may produce negative externalities that harm securities holders collectively. Under the current scheme, some markets compete for order flow from individuals by lowering standards, thereby creating the need for regulatory oversight. A rule requiring issuer consent would protect the liquidity interests of issuers and of securities holders as a group. Professors Amihud and Mendelson address the treatment of derivative securities under their scheme, proposing a fair use test that would balance the issuer’s liquidity interest against the public’s right to use price information freely. The authors suggest that under their proposed rule, markets will compete to attract securities issuers by implementing and enforcing value-maximizing trading rules, thereby providing a market-based solution to market regulation.

Essays

Hiding the Ball

Pierre Schlag

Lawyers, judges, law teachers, and law students are forever telling each other what the law is. Whether they are issuing briefs, opinions, or law review articles, they are forever staking out legal positions. And when they stake out these legal positions, they are always ascribing them to some ostensibly authoritative legal source. Hence, it is that legal actors and legal thinkers say things like, “The Constitution requires… ,” “The doctrine of worthier title provides … ,” “The parol evidence rule states that… ,” “18 U.S.C. 1503 prohibits … .” And so on.

Notes

The Response of Copyright to the Enforcement Strain of Inexpensive Copying Technology

Jayashri Srikantiah

Advances in reprographic technology have spawned inexpensive photocopiers, videotape recorders (VTRs), modems, computers, networks, and tape recorders capable of making high-quality copies. These inexpensive devices have improved the dissemination of information to all of society’s members. Unfortunately, however, the cheap pricing and wide availability of such devices have also caused a drastic increase in the unauthorized reproduction of copyrighted works.

Hopwood v. Texas: A Backward Look at Affirmative Action in Education

Laura C. Scanlan

In 1992 the University of Texas Law School (Law School) rejected the applications of Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers. These four applicants, who are white, subsequently filed suit against the State of Texas and the University of Texas, alleging that both the State and the Law School discriminated against them by using an affirmative action admissions process that placed black and Mexican American applicants in a separate admissions pool and consequently accepted members of those groups over nonminority students who had comparable grades and test scores. The plaintiffs argued that any use of race in the admissions process unconstitutionally infringed on their Fourteenth Amendment right to equal protection.

This Estoppel Has Got to Stop: Judicial Estoppel and the Americans with Disabilities Act

Anne E. Beaumont

There are more than forty million people with disabilities in the United States. It has been said that the best definition of what it means to be a person with a disability in America is to be unemployed. The Americans with Disabilities Act (ADA) was enacted in 1990 to implement a federal policy of greater inclusion of people with disabilities in all facets of the nation’s life–including employment. The employment provisions of the Americans with Disabilities Act have the potential to ameliorate the staggering unemployment rate of people with disabilities by protecting them against discrimination on the basis of disability as they enter and advance in American workplaces.