University of Colorado Law Review
Volume 71, Issue 3, Summer 2000
FOREWORD
In our first article, Professor Mark J. Loewenstein examines two prominent theories asserting that competition among states for incorporations has heavily influenced the development of state corporate codes. Professor Loewenstein first looks to Professor William L. Cary's article Federalism and the Corporate Law: Reflections Upon Delaware, which argued that states compete with one another to create the most pro-management corporate codes possible to encourage managers to incorporate there. He contrasts Cary's argument with an outspoken response by then Professor, now Federal Court of Appeals Judge Ralph K. Winter, who argued that states instead compete to create corporate law that appeals to shareholders so as to lower the cost of capital and ultimately lead managers to incorporate in that state to enjoy the benefits of those lower costs. Professor Loewenstein examines an underlying assumption upon which Cary and Winter agree-that states in fact do compete for incorporations-and finds little evidence to support such an assumption. Further, Professor Loewenstein reviews key statutory and judicial developments in the corporate law during the quarter century since Cary and Winter published their theories, and finds that those developments refute any notion that states have competed to favor management over shareholders, or vice versa. Rather, Professor Loewenstein finds that legislators' motives in amending the corporate codes are much more complex, and that both Cary and Winter overlooked the important role that legislators' perceptions of public policy play in the evolution of corporate law. Professor Loewenstein concludes with observations about the important role state legislatures play in developing corporate laws by enacting protections for shareholders and other constituents while preserving the essentially contractual nature of the corporate structure.
In our second article, Professor Gregory E. Maggs provides a systematic analysis of the jurisprudence of the Uniform Commercial Code and documents Karl Llewellyn's fading influence on the Code. Professor Maggs begins by identifying five "legislative features" of the original U.C.C. as drafted by Llewellyn. He then reviews the extensive additions and revisions to the U.C.C. over the past four decades. Professor Maggs argues that these substantial additions and revisions have done more than merely alter and augment the legal rules of the U.C.C. These changes have had the additional effect of diminishing Llewellyn's jurisprudential contributions to the Code. In conclusion, Professor Maggs urges judges and lawyers at a minimum to recognize the new character of the U.C.C., and calls for modifying the proposed revision to Article 1 to make its provisions consistent with the U.C.C.'s new character.
In our book review, Professor Gary Minda discusses the view of globalization presented by Daniel Yergin and Joseph Stanislaw in their book, Commanding Heights: The Battle Between Government and the Marketplace That Is Remaking the Modern World (1998). Globalization is a term that is widely discussed and analyzed in the legal academy today, but the discussion and analysis usually assumes that globalization can be equated with transnational corporations and marketplace activity on a grand scale, as depicted in Yergin and Stanislaw's book. Professor Minda's review argues that Yergin and Stanislaw are writing on an analytical ground that is moving to a new intellectual plane where geography and technology relate in new ways to give new meaning to concepts like "markets" and "competition." Professor Minda asserts that globalization events can best be understood as cultural phenomena. Professor Minda develops the idea of "globalization of culture" to explain how globalization activity is creating a new cultural code for regulating global market activity. By "globalization of culture," Professor Minda means the complex and multidimensional pressures that are working to give new meaning to what we do and how we understand what we do in even the most mundane experiences like "going to the beach."
In our essay, Professor H. Jefferson Powell and Benjamin J. Priester consider the language of state "sovereignty" in the opinions of the United States Supreme Court. The essay examines and classifies the Court's references to the states as sovereign from the ratification of the Constitution to the present. This analysis reveals that the Court has used the terminology of state sovereignty in a variety of ways, a substantial number of which are rhetorical and lack any substantive constitutional meaning. In addition, the frequency of the Court's usage has waxed and waned with changes in the membership of the Court and the corresponding strength or weakness of nationalist interpretations of the Constitution. The essay concludes that the indefinite content and historically inconsistent usage of the language of state sovereignty makes such language obfuscating rhetoric, rather than clarifying shorthand, in the discourse over the constitutional law of the balance between federal and state power.
In our first casenote, the author addresses the use of physician financial incentives by Health Maintenance Organizations ("HMOs") to control costs. The author begins by examining the operation of various cost containment techniques, specifically, physician incentives to limit care. He then discusses recent attempts to hold HMOs liable for these techniques. He continues by analyzing a breach of fiduciary duty claim in the context of a health care plan's use of physician incentives under the Employee Retirement Income Security Act ("ERISA"). He then goes on to discuss and explain Herdrich v. Pegram, a recent Seventh Circuit case which has opened the door to HMO liability under ERISA. The author concludes by critiquing the Herdrich court's analysis, arguing that the federal courts should not impose ERISA fiduciary liability on health care plans based solely on the plan's use of physician incentives. He asserts that liability should only be imposed on an HMO when it fails to disclose its use of physician incentives.
In our second casenote, the author addresses the admissibility of evidence of subsequent remedial measures in strict products liability actions. He examines Federal Rule of Evidence 407 and its application in products liability cases in general, and in a Colorado case-Forma Scientific, Inc. v. BioSera, Inc.-in particular. He begins by exploring the history of and justifications for Rule 407. He then analyzes in detail the BioSera decision, which refused to apply the Colorado analog of Rule 407 to products liability actions. He goes on to discuss issues such as venue, choice of law, and federalism implicated by the use of Rule 407 in products liability cases. The author concludes that, for reasons of both policy and consistency with the Erie doctrine, the rule adopted in BioSera is the better way to handle evidence of subsequent remedial measures in products liability cases.
In our comment, the author examines the problems associated with pro se criminal defendants and standby counsel. First, the author discusses the right of self-representation and its relationship to the Sixth Amendment right to counsel. Next, the author discusses the role of standby counsel and some of the problems associated with the relationship between standby counsel, the pro se defendant, the judge, and the jury. The author argues for proposed changes to the guidelines followed by standby counsel and judges in order to alleviate some of these problems. Finally, the author identifies some of the reasons a criminal defendant chooses to represent himself. These reasons illustrate that self-representation is becoming more prevalent, and therefore, better-defined roles for standby counsel and judges are a clear necessity.
THE EDITORS