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公 法 评 论 你们必晓得真理，真理必叫你们得以自由。 |
Book Review Essay 100 Colum. L. Rev. 582 (2000)
Review of Jeremy Waldron, Law and Disagreement
Richard A. Posner
In Law and Disagreement, Jeremy Waldron, born and educated in New Zealand and
trained in England, mounts a powerful argument in favor of legislation as a
legitimate source of authority and correspondingly denigrates the American
faith in judicial review. Waldron claims among other things that a
legislature's inability to achieve consensus enables legislation to resolve
disputes in a way that preserves the dignity and self-respect of losers in the
policy struggle.
In this Book Review Essay, Judge Posner commends Waldron for his impressive
criticisms of the theoretical basis for the American faith in judicial review.
At the same time, he criticizes Waldron's view of legislation as starry-eyed
and insufficiently attuned to the realities of the American judicial system.
Although Waldron shows that the philosophical arguments supporting judicial review
are weak, he does not show that judicial review itself is, on balance, a
practice we would do best without.
Article 100 Colum. L. Rev. 440 (2000)
Executives and Hedging: The Fragile Legal Foundation of Incentive Compatibility
David M. Schizer
Options are granted to executives to inspire better performance by tying pay to
the employer's stock price. Yet this incentive rationale no longer holds if
executives can use the derivatives market to simulate a sale of their options,
a practice known as hedging. This Article evaluates the effectiveness of existing
legal constraints on hedging by executives, including limits derived from
contract, securities and tax law. Although investment bankers have been
searching for ways around these constraints, the bottom line is that, at least
for now, executives are unable to hedge option grants: While contractual limits
are rare, the securities law blocks the most straightforward options hedges by
the most senior executives and the tax law blocks the rest (including
"basket" hedges by the most senior executives and all hedges by less
senior ones). In contrast, executives are relatively free to hedge stock.
Whereas this distinction between stock and options can be justified, these
legal constraints should be reformed because the relevant tax rules were not
meant to pursue corporate governance goals. As a result, tax constraints on
options hedging are unstable, as well as over- and under-inclusive. They should
be replaced with more effective contractual and securities law hedging limits.
Centennial Issue 100 Colum. L. Rev. 16 (2000)
"Transendental Nonsense" and System in The Law
Jeremy Waldron
In 1935, Felix Cohen argued in these pages that the technical terminology of
the law was mere "word-jugglery," and that its practitioners were
allowing "transcendental nonsense" to stand in for the hard work of
functional decisionmaking in the law. Professor Waldron argues that in fact
technical legal vocabulary performs an important function: It flags the
systematicity of the law, highlighting the interrelatedness of diverse concepts
and doctrines. Cohen, like later legal postivists, largely denied the
importance of such systematicity, if he acknowledged it at all. But Professor
Waldron suggests that valuing such systematicity, and the technical vocabulary
that supports it, is quite compatible with Cohen's functionalist critique of
formalist jurisprudence. In particular, Professor Waldron argues that the role
of technical terms in regard to systematicity is critical for the coherence of
modern legal systems, which develop in a context of pervasive moral
disagreement and shifting political power.