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Walter O. Weyrauch - One of the best experts on this subject based on the ideXlab platform.
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A Theory of Legal Strategy
Duke Law Journal, 2000Co-Authors: Lynn M. Lopucki, Walter O. WeyrauchAbstract:By the conventional view, case outcomes are largely the product of courts’ application of law to facts. Even when courts do not generate outcomes in this manner, prevailing Legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct Legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This chapter propounds such a theory. It classifies Legal strategies into three types: those that require willing acceptance by judges, those that constrain the actions of judges, and those that entirely deprive judges of control.
Kristen A. Carpenter - One of the best experts on this subject based on the ideXlab platform.
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A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Non-Owners
UCLA Law Review, 2006Co-Authors: Kristen A. CarpenterAbstract:Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an ownership model of property law wherein the rights of the owner trump all other interests and values. As scholars have argued, however, the ownership model represents a view of property law that is neither descriptively accurate nor normatively attractive. In theory and practice, property law also recognizes the rights of nonowners in furtherance of human values and social relations. Accordingly, this Article contends that, even as nonowners, Indians may have enforceable property rights to use, and maintain the physical integrity of, sacred sites. Examining sacred sites problems through common law, federal Indian law, public lands law, and human rights law, the Article identifies and analyzes property rights arguments that may be available to Indian litigants even where the government is the undisputed owner of the land. While this approach will not secure Indian religious freedoms in every case, the Article concludes that Indian nations should consider property rights arguments as part of a multipronged Legal Strategy in sacred sites cases.
Antoine Masson - One of the best experts on this subject based on the ideXlab platform.
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Through the Legal Looking Glass: Exploring the Concept of Corporate Legal Strategy
European Business Law Review, 2011Co-Authors: Antoine Masson, Mary J. ShariffAbstract:This paper sets out to examine various forms of Legal strategies that have thus far been identified in the areas of litigation, corporate management and competition. The goal here is to identify and classify emerging approaches to Legal Strategy discussion in order to assist in the overall study of Legal Strategy theory as well as to assist in the development of an integrated and accurate definition of Legal Strategy from a law perspective.
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Legal strategies : how corporations use law to improve performance
2010Co-Authors: Antoine Masson, Mary J. ShariffAbstract:Theorizing Legal Strategies.- From Legal Monitoring to Legal Core Competency: How to Integrate the Legal Dimension into Strategic Management.- The Origin of Legal Opportunities.- A Theory of Legal Strategy.- Alternative Conceptions of Legal Strategy and Strategic Legal Interpretation.- The Crucial Role of Legal Capability in the Realisation of Legal Strategies.- Litigation Cost Strategies from Economics.- A Cognitive Approach to Judicial Strategies: A Perspective from the French Business Environment.- Legal Strategies In Action.- Perspectives on Legal Strategy through Alternative Dispute Resolution.- Strategic Planning to Avoid Organizational Criminal Liability: A Canadian Perspective.- Corporate Risk Management and Legal Strategy.- A Legal Strategy Case Study: Trusts in Securitization.- Activist Hedge Funds and Legal Strategy Devices.- Patents and Trademarks: From Business Law to Legal Astuteness.- The Strategic Use of Legal Margins: How to Introduce an Extension of Someone Else's Brand.- The Effect of Complexity of Law on Litigation Strategy.- Evidence Collection as a Legal Resource for Strategy: A French and European Perspective.- Transnational Transactions: Legal Work, Cross-Border Commerce and Global Regulation.- Responses To Legal Strategies.- Limits to Horizontal Strategies: Majority Shareholders Facing Minority Activism.- Innovation and Access: Legal Strategies at the Intellectual Property Rights and Competition Law Interface.- Conclusion: Enlarging The Potential For A "Law And Strategies" Approach.- Applied Advanced Legal Strategy in Court: The Example of the International Criminal Court.
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The Crucial Role of Legal Capability in the Realisation of Legal Strategies
Legal Strategies, 2009Co-Authors: Antoine MassonAbstract:In this chapter, the author examines firms’ potential to launch Legal strategies. To this end, the author first attempts to identify what creates the capability within a firm to transform a Legal resource or Legal opportunity into a competitive Legal advantage. Second, the author looks at the circumstances under which a firm decides to invest in the enhancement of this Legal capability. Third, the author discusses why a firm might decide to mobilize such a capability to initiate a Legal Strategy.
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The Origin of Legal Opportunities
Legal Strategies, 2009Co-Authors: Antoine MassonAbstract:This chapter sets out to determine the origin of Legal strategies by attempting to include and/or identify the possible resources that might be mobilized in the realisation of a Legal Strategy. Following this line of attack, the chapter first looks at the potential sources of Legal strategies by identifying the Legal opportunities that arise out of the misuse of norms. The chapter then shifts its focus to responses and examines the difficulties encountered by a given Legal system in fully addressing Legal strategies in action.
Mary J. Shariff - One of the best experts on this subject based on the ideXlab platform.
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Through the Legal Looking Glass: Exploring the Concept of Corporate Legal Strategy
European Business Law Review, 2011Co-Authors: Antoine Masson, Mary J. ShariffAbstract:This paper sets out to examine various forms of Legal strategies that have thus far been identified in the areas of litigation, corporate management and competition. The goal here is to identify and classify emerging approaches to Legal Strategy discussion in order to assist in the overall study of Legal Strategy theory as well as to assist in the development of an integrated and accurate definition of Legal Strategy from a law perspective.
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Legal strategies : how corporations use law to improve performance
2010Co-Authors: Antoine Masson, Mary J. ShariffAbstract:Theorizing Legal Strategies.- From Legal Monitoring to Legal Core Competency: How to Integrate the Legal Dimension into Strategic Management.- The Origin of Legal Opportunities.- A Theory of Legal Strategy.- Alternative Conceptions of Legal Strategy and Strategic Legal Interpretation.- The Crucial Role of Legal Capability in the Realisation of Legal Strategies.- Litigation Cost Strategies from Economics.- A Cognitive Approach to Judicial Strategies: A Perspective from the French Business Environment.- Legal Strategies In Action.- Perspectives on Legal Strategy through Alternative Dispute Resolution.- Strategic Planning to Avoid Organizational Criminal Liability: A Canadian Perspective.- Corporate Risk Management and Legal Strategy.- A Legal Strategy Case Study: Trusts in Securitization.- Activist Hedge Funds and Legal Strategy Devices.- Patents and Trademarks: From Business Law to Legal Astuteness.- The Strategic Use of Legal Margins: How to Introduce an Extension of Someone Else's Brand.- The Effect of Complexity of Law on Litigation Strategy.- Evidence Collection as a Legal Resource for Strategy: A French and European Perspective.- Transnational Transactions: Legal Work, Cross-Border Commerce and Global Regulation.- Responses To Legal Strategies.- Limits to Horizontal Strategies: Majority Shareholders Facing Minority Activism.- Innovation and Access: Legal Strategies at the Intellectual Property Rights and Competition Law Interface.- Conclusion: Enlarging The Potential For A "Law And Strategies" Approach.- Applied Advanced Legal Strategy in Court: The Example of the International Criminal Court.
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Perspectives on Legal Strategy through Alternative Dispute Resolution
Legal Strategies, 2009Co-Authors: Mary J. Shariff, Marlene Pomrenke, Vivian HilderAbstract:In this chapter, Legal strategies are discussed in the context of Alternative Dispute Resolution (ADR), primarily from a Canadian perspective. When ADR was established as an alternative to the traditional and often unsatisfactory dispute resolution regime, i.e. litigation, the element of choice was introduced causing ADR to be recognised by Legal and business communities alike as a powerful tool in the formation of strategic resolutions to a client’s given dispute. Early strategies included the ability to avoid, manipulate or even block aspects of the traditional litigation process.
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Revisiting the Battle of the Forms: A Case Study Approach to Legal Strategy Development
2009Co-Authors: Mary J. Shariff, Kevin Marechal De CarteretAbstract:The area of contract law described as the battle of the forms is a perfect example of an area of law where the Legal rules and their application are complex, contradictory, and/or inconsistently applied. Indeed, the battle of the forms problem has been recognized as among the most “difficult problems for contract doctrine to resolve” and in some jurisdictions, has been described as “chaos” thus increasing opportunities for the strategic manipulation of the law. The classic battle of the forms typically arises when a buyer and seller exchange conflicting standard forms and commence performance of the contract. The parties appear to have a contract, “but on what terms?” Legal solutions to the battle of the forms dilemma have ranged from the development of the common law doctrine known as the “performance doctrine”, which simplifies the matter by downplaying rigorous application of contract law fundamentals like intention and consensus ad idem, to solutions that lie in restitution, to attempts to legislate it away. This is what makes the battle of the forms dilemma particularly interesting from a Legal Strategy point of view. There exists both tension and conflict in the law as to how a battle of the forms is to be, or should be, addressed. Such tension and conflict provide fodder for the development of opportunistic corporate behaviour. Such behaviour means that the management of the company is driven by exploitation of the law. It also has the potential to signal to the court and its officers that Legal strategies could be at play. While the practical relevance of Legal strategies to the strategies employed by judges in resolving disputes is a question for another day, express acknowledgment of the potential for Legal Strategy in the first instance is arguably a step towards the development of policies capable of directly addressing corporate Legal strategies and beginning the process of distinguishing acceptable strategies from the unacceptable. This paper does not delve into the ethical considerations of Legal Strategy or attempt to delineate the line between the acceptable and the offensive Strategy. This paper simply advances a strategic analysis of recent Canadian battle of the forms case-law, as a discrete area of law, in order to uncover the strengths and weaknesses of various strategic approaches which might be used to achieve desired outcomes. One benefit of expressly undertaking this kind of explicit reverse causality examination is that it can assist regulators and legislators in identifying where the potential to manipulate a specific Legal rule into supporting an unintended or undesirable corporate activity exists. It may also, over time, assist in the development of the best possible balance or “policy mix” for regulators that might “best limit the opportunities for companies to strategically manipulate rules.”
Lynn M. Lopucki - One of the best experts on this subject based on the ideXlab platform.
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A Theory of Legal Strategy
Duke Law Journal, 2000Co-Authors: Lynn M. Lopucki, Walter O. WeyrauchAbstract:By the conventional view, case outcomes are largely the product of courts’ application of law to facts. Even when courts do not generate outcomes in this manner, prevailing Legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct Legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This chapter propounds such a theory. It classifies Legal strategies into three types: those that require willing acceptance by judges, those that constrain the actions of judges, and those that entirely deprive judges of control.