Current Issue

  • Volume 64,
  • Number 4 -
  • January 2015

Article

Hollywood Deals: Soft Contracts for Hard Markets
Jonathan M. Barnett
PDF

Hollywood film projects involving significant capital investments regularly proceed on the basis of unsigned “deal memos” and draft agreements with uncertain legal enforceability. These “soft contracts” constitute a hybrid instrument adapted to the transactional hazards of an environment in which neither formal contract nor reputation effects can adequately specify and enforce parties’ commitments at any reasonable cost. Uncertainly enforceable contracts embed an implicit termination-and-renegotiation option that provides flexibility to respond to changed circumstances while maintaining a threat of legal liability that provides some transactional security. Evidence collected from litigation records, trade-press coverage, and field interviews shows that parties select “softer” or “harder” contractual instruments following a marginal cost–benefit calculus that secures parties’ commitments at the lowest transaction-cost burden. Observed differences in the formalization levels selected with respect to different stages, elements, and parties in a film production reflect underlying differences in reputational capital, transactional experience, specification costs, enforcement costs, and holdup risk. A survey of litigation records and trade-press coverage since the inception of the Hollywood motion-picture industry suggests that soft contracts emerged as a substitute for the long-term employment contracts that secured studios’ and talent’s commitments in the era of the “studio system.”

Notes

Laboratories for Inequality: State Experimentation and Educational Access for English-Language Learners
Matthew P. O’Sullivan
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Given increased state hostility to minority-language use and states’ ever-changing, though at times inadequate, methods of accommodating English-language learners, federal intervention is necessary to protect vulnerable linguistic minorities. But, fueled by the Supreme Court and Congress since the early 2000s, the federal government has increasingly accorded greater deference to state legislatures and local school districts in the area of English-language learner (ELL) education. This growing acceptance of “deference not deserved” ignores evidence of state failure in education of ELLs and irresponsible state experimentation with the rights of students with limited English proficiency. It also marks a decided departure from historical practice in the area of ELL education, though federal involvement in funding and shaping state education policy is more firmly entrenched than ever.

Vindicating the ability of ELLs to access a meaningful education may undercut traditional notions of state control over education policy generally. But historical practice strongly supports the federal government’s ability to protect vulnerable linguistic groups by conditioning federal dollars on the satisfaction of federal education standards. The spirit of the Equal Educational Opportunities Act, Supreme Court precedent regarding access to education, and the Common Core State Standards Initiative’s federalization of school curricula all suggest that Congress should leverage its control over state education funds to protect ELLs.

Territorial Annexation as a “Great Power”
Daniel Rice
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The Roberts Court has recently begun reviving a long-latent structural constitutional principle—that some unenumerated powers are too important to be inferred through the Necessary and Proper Clause. Under this abstractly sensible theory, some powers are too “great” to have been conferred by implication alone. This structural logic seems poised to command majority holdings in the Supreme Court. But it is largely unclear what results so undertheorized a concept might dictate. Now is the time to survey the domain of “great powers” in service of developing an appropriately modest and judicially enforceable great-powers doctrine.

This Note argues that a power to annex foreign territory is too important to be inferred through the Necessary and Proper Clause. Because the Constitution does not enumerate a territorial-acquisition power, Congress therefore disregarded great-powers limitations in annexing Texas and Hawaii through joint resolution. Congressional Globe debates from 1845 reveal that opponents of annexing Texas boldly anticipated this very argument. This Note explores their forgotten constitutional claim in the course of highlighting annexation’s historical pedigree as a great power.

Rethinking the constitutional basis for territorial expansion demonstrates that judges cannot apply great-powers principles consistently. And previously overlooked congressional annexation rhetoric supplies fresh diagnostic tools for identifying other great powers, allowing scholars to escape deceptively stale search terms. In fact, this Note marks the first attempt to identify a federal statute struck down on great-powers grounds: the Court’s decision in Afroyim v. Rusk can be fairly read as holding that involuntary expatriation is too important a power to be inferred through the Necessary and Proper Clause.