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Articles 1 - 12 of 12
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Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Donald J. Kochan
Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan
Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan
Donald J. Kochan
Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
Donald J. Kochan
The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan
The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan
Donald J. Kochan
Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan
Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan
Donald J. Kochan
Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests …
The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan
The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan
Donald J. Kochan
This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence. In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right to exclude, ownership, dominion, authority, …
Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan
Certainty Of Title: Perspectives After The Mortgage Foreclosure Crisis On The Essential Function Of Effective Recording Systems, Donald J. Kochan
Donald J. Kochan
Recording systems for property play a pivotal, market-facilitating role for the players engaged in any transaction, the judiciary that must resolve disputes between the players, and others members of the general public by informing each about the true nature of ownership of the real property things in the world. This symposium article explores the essential character of such systems in providing certainty of title, and takes a tour through the mortgage foreclosure crisis to see where adherence to and respect for these systems’ roles broke down. Leading up to the crisis, as securitization became vogue and the housing boom blurred …
Black Tuesday And Graying The Legitimacy Line For Governmental Intervention: When Tomorrow Is Just A Future Yesterday, Donald J. Kochan
Black Tuesday And Graying The Legitimacy Line For Governmental Intervention: When Tomorrow Is Just A Future Yesterday, Donald J. Kochan
Donald J. Kochan
Black Tuesday in October 1929 marked a major crisis in American history. As we face current economic woes, it is appropriate to recall not only the event but also reflect on how it altered the legal landscape and the change it precipitated in the acceptance of governmental intervention into the marketplace. Perceived or real crises can cause us to dance between free markets and regulatory power. Much like the events of 1929, current financial concerns have led to new, unprecedented governmental intervention into the private sector. This Article seeks caution, on the basis of history, arguing that fear and crisis …
Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan
Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan
Donald J. Kochan
From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …
Runoff And Reality: Externalities, Economics, And Traceability Issues In Urban Runoff Regulation, Donald J. Kochan
Runoff And Reality: Externalities, Economics, And Traceability Issues In Urban Runoff Regulation, Donald J. Kochan
Donald J. Kochan
It has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these questions form background, the primary emphasis currently anticipated for this presentation is on traceability, collective action, and free rider problems that motivate regulation in this area. Often runoff is described …
The Political Economy Of The Production Of Customary International Law: The Role Of Non-Governmental Organizations, Donald J. Kochan
The Political Economy Of The Production Of Customary International Law: The Role Of Non-Governmental Organizations, Donald J. Kochan
Donald J. Kochan
Increasingly, United States courts are recognizing various treaties, as well as declarations, proclamations, conventions, resolutions, programmes, protocols, and similar forms of inter- or multi-national “legislation” as evidence of a body of “customary international law” enforceable in domestic courts, particularly in the area of tort liability. These “legislative” documents, which this Article refers to as customary international law outputs, are seen by some courts as evidence of jus cogens norms that bind not only nations and state actors, but also private individuals. The most obvious evidence of this trend is in the proliferation of lawsuits against corporations with ties to the …
The Other Side Of The Coin: Implications For Policy Formation In The Law Of Judicial Interpretation. Book Note: A Review Of A Matter Of Interpretation: Federal Courts And The Law By Antonin Scalia, Donald J. Kochan
Donald J. Kochan
Justice Scalia defends textualism as the only form of interpretation that should govern judicial interpretation of statutes and the Constitution. The book begins with an essay by Justice Scalia establishing the framework of his interpretive model and arguing that his model is mandated to achieve institutional legitimacy in a constitutional system of separated powers and for the protection of democracy. Comments to this essay follow from four distinguished scholars. Each comment is addressed in the final pages by a response from Justice Scalia. This Article presents an overview of Justice Scalia's argument, the arguments embodied in the comments, and discusses …