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Volume 77, Number 4

October 2002
Articles

Rethinking Corporate Bonds: The Trade-Off Between Individual and Collective Rights

Marcel Kahan

This Article presents a framework for analyzing the tradeoff between structuring bondholder rights as individual or as collective rights. Individual rights cannot be modified without the consent of each affected bondholder and they can be enforced by any bondholder whose right is violated. By contrast, if rights are collective, they can be modified by a majority of bondholders and they cannot be enforced without the consent of a majority of bondholders. The framework developed in this Article identifies the respective theoretical problems of vesting bondholder rights individually or collectively and examines the institutional setting of the United States corporate bond market to assess the practical significance of these problems. The Article ultimately endorses the presently prevailing structure of rights governing amendments, but identifies a number of defects with respect to the enforcement of rights. It concludes with specific recommendations for revisions in the structure and judicial interpretation of bondholder rights.

Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint

John A. Ferejohn, Larry D. Kramer

Many commentators believe that judicial independence and democratic accountability stand in irreconcilable tension with each other. Professors Ferejohn and Kramer suggest that these competing ideals are not themselves goals, but rather are means to a more important end: a well-functioning system of adjudication. Either or both may be sacrificed in the pursuit of this overarching objective. The United States Constitution seeks to achieve this objective by giving individual judges enormous independence while placing them within an institution that is highly susceptible to political control. The resulting vulnerability creates a dynamic that makes federal courts, and especially the Supreme Court, into effective self-regulators. The Authors argue that, seen in this light, the system of institutional self-restraint encompasses a broader range of judicial doctrines than has been understood previously. The Article concludes that reconciling the judiciary’s twin goals of democratic legitimacy and legal legitimacy requires a more balanced view, for maintaining the judicial branch’s independence lies as much or more in the judge’s own hands as in external political pressures.

The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis

Richard L. Cupp Jr., Danielle Polage

In defective design and warning cases, courts and commentators increasingly are questioning the substantive distinction between negligence and strict liability causes of action. In 1998, the Restatement (Third) of Torts: Products Liability adopted a risk/utility analysis for defective design and warning claims that reflects a strong trend among jurisdictions in two ways. First, it advocated using the risk/utility test regardless of whether plaintiffs label their claims as negligence or strict liability (or, for that matter, implied warranty of merchantability). Second, the Restatement’s risk/utility analysis draws from principles of reasonableness, making strict liability essentially subject to a negligence analysis. In light of courts’ trend toward risk/utility and the Restatement’s position, commentators increasingly have wondered whether a plaintiffs choice between negligence and strict liability in design and warning claims largely amounts to a rhetorical preference. In this Article, Professors Richard L. Cupp Jr. and Danielle Polage present an empirical study of mock jurors that tests whether employing negligence versus strict liability language influences jury decisions when a substantively identical risk/utility standard is used. The authors found support for the perhaps counterintuitive argument that negligence language may favor plaintiffs by drawing on emotionally “hot” notions of fairness and fault, as opposed to the “cold” technical concepts of strict liability. The study found that jurors hearing the case under negligence language were more likely to find the defendant liable, and that they awarded, on average, almost twice the amount of damages compared to their strict liability counterparts. Indeed, although several findings showed advantages to using negligence language or disadvantages to using strict liability language, the study found no obvious rhetorical advantages to using strict liability language. The study thus presents a powerful challenge to the notion that strict liability is generally a pro-plaintiff doctrine under courts’ increasingly dominant approaches to design and warning cases.

Commentaries

The Day Anthrax Came to the Supreme Court

Linda Greenhouse

Supreme Court correspondent, New York Times. B.A. Harvard University, 1968; M.S.L. Yale Law School, 1978.

This is the revised text of remarks delivered at the June 6, 2002 Association of American Law Schools / American Political Science Association Constitutional Law Conference.

Notes

Democracy’s Baby Blocks: South Africa’s Electoral Commissions

Vijay Padmanabhan

Like many other transitional democracies, South Africa has chosen to run its two national postapartheid elections by an independent electoral commission, not by the existing government. Although the results were widely considered legitimate, the perception of legitimacy was due in large part to the public’s low expectations. To keep the public confidence, and to avoid the sorts of large-scale breakdowns in the electoral process that might undermine it, the current Electoral Commission must embrace major reforms. One of the Electoral Commission’s most pressing problems is the fact that opposition parties believe it is strongly biased in favor of the ruling political party, the African National Congress. The Electoral Commission also has failed to devolve meaningful power to provincial officials, increasing the risk that it will botch the details of election management. The author proposes several measures to help resolve these concerns.

Women and Land: Aristrocratic Ownership of Property in Early Modern England

Anastasia B. Crosswhite

In this Note, Anastasia Crosswhite examines land ownership of elite women in early modern England. Studying property disputes within two of the richest aristocratic families in early modern England, the Manners and the Talbots, Crosswhite fills a gap in English historical literature and also complicates the common scholarly view that the early modern English legal and social systems rendered female control and ownership of land a rarity. Although finding that the legal system generally discouraged female property ownership, Crosswhite also discovers that the women of the Manners and Talbot families did own, manage, and control land. In addition, the legal system itself provided the opportunity to do so, for it routinely placed the control, albeit often temporary, of land in women’s hands. Yet these opportunities had to be exploited by individual historical actors, and Crosswhite concludes that the men and women of the Manners and Talbot families, being able manipulators of legal and social structures, did so to the benefit of themselves and their families.

The Potential Liability of Federal Law-Enforcement Agents Engaged in Undercover Child Pornography Investigations

Howard Anglin

In the course of enforcing laws against child pornography, law enforcement agents often engage in undercover operations that involve mailing child pornography to suspected consumers. In this Note, Howard Anglin argues that Congress and the Supreme and circuit courts have clearly established that children portrayed in pornography are harmed every time the pornographic images are viewed. The current law enforcement practice of mailing child pornography therefore injures children each time it is carried out. Under the doctrine formulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, this injury is actionable by the children involved and may lead to monetary damage awards against the agents who choose to send pornography to criminal suspects. Thus, law enforcement agencies should alter their practices to avoid Bivens liability and adhere to Congressional admonitions not to injure the innocent in order to catch the guilty.