114 Yale L.J. 1521 (2005)

This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical literature provides a metric for evaluating whether specific provisions can be most accurately characterized as efficacious reforms or as quack corporate governance. The learning of the literature, much of which was available when Congress was debating the bill, is that SOX's corporate governance provisions were ill conceived.

The political environment explains why Congress would enact legislation with such mismatched means and ends. SOX was enacted as emergency legislation amid a free-falling stock market and media frenzy over corporate scandals shortly before midterm congressional elections. The governance provisions, introduced toward the end of the legislative process in the Senate, were not a focus of any considered attention. Their inclusion stemmed from the interaction between election-year politics and the Senate Banking Committee chairman's response to the suggestions of policy entrepreneurs. The scholarly literature at odds with those individuals' recommendations was not brought to Congress's attention (and was ignored on the rare occasions that it was referenced).

The pattern of congressional decisionmaking in SOX is not, however, unique. Much of the expansion of federal regulation of financial markets has occurred after significant market turmoil. The Article concludes that SOX's corporate governance provisions should be stripped of their mandatory force and rendered optional. To mitigate future policy blunders on the scale of SOX, it also suggests that emergency or crisis-mode legislation provide for reevaluation at a later date when more deliberative reflection is possible.

114 Yale L.J. 1675 (2005)

In Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China's Basic-Level Judicial System], Dean Zhu Suli of Beijing University Law School claims that Chinese legal scholars uncritically accept foreign models and rule-of-law ideology in discussing the future of the Chinese legal system rather than examining the reality of how Chinese courts function. To correct this error, he calls on Chinese legal scholars to pay attention to ground-level courts in rural China and himself undertakes an investigation of the strategies and techniques of judges in these courts. He claims that effective rural judges are concerned almost exclusively with dispute resolution and rarely use formal law in a conventional manner or play any significant role in the diffusion of central legal norms. He also defends the practice of collective judging and the use of former military personnel as judges, both of which are frequently criticized as inconsistent with the rule of law.

Zhu's data and analysis present a serious challenge to the conventional wisdom regarding the role of judges and formal adjudication in developing countries, but he lacks a sophisticated comparative perspective that could put China's experience in a more nuanced context. Most troubling, he neglects both the power of the Communist Party to use the courts to repress society and the potential role of the courts in moderating that power on behalf of the rural population.

114 Yale L.J. 1759 (2005)

This Note finds that the gender composition of the bench affected federal appellate court outcomes in Title VII sexual harassment and sex discrimination cases in 1999, 2000, and 2001. An empirical study (n = 1666) shows that female judges decided for plaintiffs more often than did male judges. Moreover, male judges on panels with female judges decided for plaintiffs more than twice as often as those on all-male panels. Gender mattered more than ideology in determining outcomes. The Note discusses four explanations for the observed effect of gender on collegial decisionmaking: deliberation, deference, logrolling, and moderation.
DATA SET (Excel)

114 Yale L.J. 1819 (2005)

A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acting within the scope of representation cannot be counted as a conspirator for purposes of the plurality requirement. In other words, there can be no such thing as a conspiracy between an attorney and her client. This Comment argues that the Eleventh Circuit's limitation on attorney-client conspiracies is illegitimate as a matter of statutory interpretation and ill advised as a matter of policy. Part I sets out the facts of Farese. Part II argues that a categorical rule against attorney-client conspiracies is misguided. Part III concludes.