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Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson Dec 2006

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's ...


Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann Jan 2006

Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann

Faculty Scholarship

This article explores the relationship between consumer credit markets and bankruptcy policy. In general, I argue that the causative relationships running between borrowing and bankruptcy compel a new strategy for policing the conduct of lenders and borrowers in modern consumer credit markets. The strategy must be sensitive to the role of the credit card in lending markets and must recognize that both issuers and cardholders are well placed to respond to the increased levels of spending and indebtedness. In the latter parts of the article, I recommend mandatory minimum payment requirements, a tax on distressed credit card debt, and the ...


Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault Jan 2006

Adding Adequacy To Equity: The Evolving Legal Theory Of School Finance Reform, Richard Briffault

Faculty Scholarship

The law of school finance reform is conventionally described as consisting of three waves, each associated with a distinctive legal theory – a first wave based on federal equal protection arguments, a second equity wave based on state equal protection clauses, and a third adequacy wave based on state constitutional education articles. The asserted shift from equity to adequacy has been credited with the increasing success of school finance reform plaintiffs.

The wave metaphor and especially the differences between the second and third waves, however, have been sharply overstated – temporally, textually, in terms of litigation success, and as a matter of ...


'Une Chose Publique'? The Author's Domain And The Public Domain In Early British, French And Us Copyright Law, Jane C. Ginsburg Jan 2006

'Une Chose Publique'? The Author's Domain And The Public Domain In Early British, French And Us Copyright Law, Jane C. Ginsburg

Faculty Scholarship

Much contemporary copyright rhetoric casts copyright as a derogation from a primordial public domain. Placing the public domain in the initial position buttresses attempts to contain a perceived over-expansion of copyright. I do not take issue with the normative role these endeavors assign to the public domain. The public domain is today and should remain copyright's constraining counterpart. But normative arguments that also claim the support of history may be fundamentally anachronistic. The ensuing examination of the respective domains of author and public at copyright's inception, in 18th-19th century Britain, France and America, reveals more ambiguity than today ...


Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan Jan 2006

Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan

Faculty Scholarship

A recent cohort of studies report deterrent effects of capital punishment that substantially exceed almost all previous estimates of lives saved by execution. Some of the new studies go further to claim that pardons, commutations, and exonerations cause murders to increase, as does trial delay. This putative life-life tradeoff is the basis for claims by legal academics and advocates of a moral imperative to aggressively prosecute capital crimes, brushing off evidentiary doubts as unreasonable cautions that place potential beneficiaries at risk of severe harm. Challenges to this "new deterrence" literature find that the evidence is too unstable and unreliable to ...


Overseer, Or 'The Decider'? The President In Administrative Law, Peter L. Strauss Jan 2006

Overseer, Or 'The Decider'? The President In Administrative Law, Peter L. Strauss

Faculty Scholarship

All will agree that the Constitution creates a unitary chief executive officer, the President, at the head of the government Congress defines to do the work its statutes detail. Disagreement arises over what his function entails. Once Congress has defined some element of government and specified its responsibilities, we know that the constitutional roles of both Congress and the courts are those of oversight of the agency and its assigned work, not the actual performance of that work. But is it the same for the President? When Congress confers authority on the Environmental Protection Agency to regulate various forms of ...


Why Have A Telecommunications Law?: Anti-Discrimination Norms In Communications, Tim Wu Jan 2006

Why Have A Telecommunications Law?: Anti-Discrimination Norms In Communications, Tim Wu

Faculty Scholarship

This paper presents telecommunications law with a challenge: how much of the present Telecommunication's Acts objectives might be accomplished with a focus on a central anti-discrimination rule? The one-rule model provides one answer. This rule should be (1) a general norm that is technologically neutral, (2) in the form of an ex ante rule with ex poste remedies, and (3) anchored on a model of consumers' rights. The form of the rule recommended here is hardly radical. It is, rather, something of a restatement of the best of telecommunications practice based on decades of telecommunications experience. It borrows from ...


The Law And Economics Of Preliminary Agreements, Alan Schwartz, Robert E. Scott Jan 2006

The Law And Economics Of Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law encourages parties to make relation-specific investments by enforcing the contracts the parties make, and by denying liability when the parties had failed to agree. For decades, the law has had difficulty with cases where parties sink costs in the pursuit of projects under agreements that are too incomplete to enforce, and where one of the parties prefers to exit rather than pursue the contemplated project. The issue whether to award the disappointed party any remedy has divided a large number of courts over many years. The judicial uncertainty arises, we claim, because the questions why parties make such ...


Institutional Coordination And Sentencing Reform, Daniel C. Richman Jan 2006

Institutional Coordination And Sentencing Reform, Daniel C. Richman

Faculty Scholarship

Generally, treatments of prosecutorial discretion in the sentencing context tend to focus on its challenge to horizontal equity and judicial discretion within sentencing regimes. The goal in this symposium piece is to reverse the arrow, and, using an internal executive perspective, start looking at how sentencing regimes and judicial enforcement of those regimes can be used as tools for the hierarchical control of line prosecutors. It first considers a problem arising out of ostensibly successful regulation within a prosecutor's offices - in this case, an effort to control plea bargaining in New Orleans. It then considers issues relating to regulation ...


Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault Jan 2006

Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

In Vieth v. Jubelirer, a narrow majority of the Supreme Court determined that, at least for the moment, partisan gerrymandering is nonjusticiable. Yet, strikingly, all nine members of the Court also agreed that, justiciable or not, partisan gerrymanders raise a constitutional question, and some gerrymanders are unconstitutional. However, the Court gave little attention to just why gerrymandering might be unconstitutional. The justices bounced back and forth between justiciability and the standards for proving gerrymandering without considering what constitutional harm gerrymandering poses. This Article considers the question of why partisan gerrymandering might be unconstitutional. It finds four constitutional arguments against gerrymandering ...


Social Contagion Of Violence, Jeffrey Fagan, Deanna L. Wilkinson, Garth Davies Jan 2006

Social Contagion Of Violence, Jeffrey Fagan, Deanna L. Wilkinson, Garth Davies

Faculty Scholarship

Since 1968, violence and other crimes in New York City have followed a pattern of recurring epidemics. There have been three consecutive and contiguous cycles characterized by sharp increases in homicides and assaults to an elevated rate followed by equally steep declines to levels near the previous starting point. The most recent epidemic, from 1985-96, had the sharpest rise and steepest decline of the three epidemics. Popular explanations of the current epidemic fail to account for both the rise and fall of the decline, or for the repetitive pattern of these epidemics. In this article, we use public health data ...


Congress, Article Iv, And Interstate Relations, Gillian E. Metzger Jan 2006

Congress, Article Iv, And Interstate Relations, Gillian E. Metzger

Faculty Scholarship

Article IV imposes prohibitions on interstate discrimination that are central to our status as a single nation, yet the Constitution also grants Congress broad power over interstate relations. This leads to the questions of whether Congress has power to authorize states to engage in conduct that otherwise would violate Article IV, and more generally of how we should conceive of Congress' role in the interstate relations context, what is sometimes called the horizontal dimension of federalism. These questions are of growing practical relevance, given recently enacted or proposed measures – the Defense of Marriage Act (DOMA) is the most prominent example ...


Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger Jan 2006

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use ...


The World Trade Law Of Internet Filtering, Tim Wu Jan 2006

The World Trade Law Of Internet Filtering, Tim Wu

Faculty Scholarship

In 1994, when most of the world's trading nations agreed to create the WTO, they also agreed to begin to liberalize trade in services. What no one fully realized at the time (and not all realize now) is that those decisions placed the WTO in the midst of internet regulation. Much internet content can be reached from anywhere, making nearly everyone on the internet a potential importer or exporter of services (and sometimes goods). Hence, almost by accident, the WTO has put itself in an oversight position for most of the national laws and practices that regulate the internet ...


Enlisting The Tax Bar, David M. Schizer Jan 2006

Enlisting The Tax Bar, David M. Schizer

Faculty Scholarship

Tax shelters have proliferates in the United States not only because of financial innovation, the globalization of capital markets, the increasing complexity of our tax system, the inadequacy of tax penalties, the lack of political support for tax reform, and the growing popularity of textualist interpretation – all factors that have attracted considerable attention in the literature. Shelters also derive from a structural imbalance in our tax system that has not been adequately explored: In important respects, the private tax bar outmatches its counterpart in government. This imbalance is one of sheer numbers, of access to information, and, at least in ...


Reforming The Securities Class Action: On Deterrence And Its Implementation, John C. Coffee Jr. Jan 2006

Reforming The Securities Class Action: On Deterrence And Its Implementation, John C. Coffee Jr.

Faculty Scholarship

Securities class actions impose enormous penalties, but they achieve little compensation and only limited deterrence. This is because of a basic circularity underlying the securities class action: When damages are imposed on the corporation, they essentially fall on diversified shareholders, thereby producing mainly pocket-shifting wealth transfers among shareholders. The current equilibrium benefits corporate insiders, insurers, and plaintiffs' attorneys, but not investors. The appropriate answer to this problem is not to abandon securities litigation, but to shift the incidence of its penalties so that, in the secondary market context, they fall less on the corporation and more on those actors who ...


Credit Cards, Consumer Credit, And Bankruptcy, Ronald J. Mann Jan 2006

Credit Cards, Consumer Credit, And Bankruptcy, Ronald J. Mann

Faculty Scholarship

This paper analyzes the effects of credit card use on broader economic indicators, specifically consumer credit, and consumer bankruptcy filings. Using aggregate nation-level data from Australia, Canada, Japan, the United Kingdom, and the United States, I find that credit card spending, lagged by 1-2 years, has a strong positive effect on consumer credit. Finally, I find a strong relation between credit card debt, lagged by 1-2 years, and bankruptcy, and a weaker relation between consumer credit, lagged by 1-2 years, and bankruptcy. The relations are robust across a variety of different lags and models that account for problems of multicollinearity ...


Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott Jan 2006

Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott

Faculty Scholarship

Hoffman v. Red Owl Stores is one of the storied cases in modern contract law. The conventional wisdom is that Hoffman represents the emergence of a new legal rule imposing promissory estoppel liability for representations made during preliminary negotiations. Yet a review of contemporary case law shows that, in fact, courts require some form of agreement before they will grant recovery for early reliance. Hoffman's main legacy, therefore, has been as a trap for the unwary lawyer (and unhappy client) who unsuccessfully seek recovery for reliance on preliminary negotiations. This article asks how the court in Hoffman was able ...


Rulemaking In The Ages Of Globalization And Information: What America Can Learn From Europe, And Vice Versa, Peter L. Strauss Jan 2006

Rulemaking In The Ages Of Globalization And Information: What America Can Learn From Europe, And Vice Versa, Peter L. Strauss

Faculty Scholarship

This paper stems from a project on European Union Administrative Law undertaken by the American Bar Association's Section on Administrative Law and Regulatory Practice. It explores the generation of normative texts by the Commission of the European Union, its executive body, from the perspective of Americans familiar with notice and comment rulemaking. Legislative drafting (an exclusive responsibility of the Commission), subordinate measures corresponding to American rules and regulations, and soft law generated by the Commission are all considered. In creating legislative proposals, the Commission uses techniques quite like American rulemaking, but with consultative practices (including electronic consultations) that seem ...


Patents And Business Models For Software Firms, John R. Allison, Abe Dunn, Ronald J. Mann Jan 2006

Patents And Business Models For Software Firms, John R. Allison, Abe Dunn, Ronald J. Mann

Faculty Scholarship

We analyze the relation between patents and the different business models available to firms in the software industry. The paper builds on Cusumano's work defining the differences among firms that sell products, those that provide services, and the hybrid firms that fall between those polar categories. Combining data from five years of Software Magazine's Software 500 with data about the patenting practices of those software firms, we analyze the relation between the share of revenues derived from product sales and the firm's patenting practices. Accounting for size, R&D intensity, and sector-specific effects, the paper finds a ...


Bankruptcy Reform And The 'Sweat Box' Of Credit Card Debt, Ronald J. Mann Jan 2006

Bankruptcy Reform And The 'Sweat Box' Of Credit Card Debt, Ronald J. Mann

Faculty Scholarship

Those that backed the 2005 bankruptcy reform law argued that it would protect creditors from consumer abuse and lack of financial responsibility. The substantial increase in the number of bankruptcies over the last decade combined with the perception of system-wide abuse apparently convinced legislators from both political parties that the backers had a point. Thus, Congress enacted amendments to the Bankruptcy Code that - if effective - would fundamentally change the core policies underlying the consumer bankruptcy system in this country. The rhetoric surrounding the reform debates pressed the idea that if borrowers had to repay more of their debts, creditors would ...


Remapping The Charitable Deduction, David Pozen Jan 2006

Remapping The Charitable Deduction, David Pozen

Faculty Scholarship

If charity begins at home, scholarship on the charitable deduction has stayed at home. In the vast legal literature, few authors have engaged the distinction between charitable contributions that are meant to be used within the United States and charitable contributions that are meant to be used abroad. Yet these two types of contributions are treated very differently in the Code and raise very different policy issues. As Americans' giving patterns and the U.S. nonprofit sector grow increasingly international, the distinction will only become more salient.

This Article offers the first exploration of how theories of the charitable deduction ...


The Architecture Of Inclusion: Advancing Workplace Equity In Higher Education, Susan P. Sturm Jan 2006

The Architecture Of Inclusion: Advancing Workplace Equity In Higher Education, Susan P. Sturm

Faculty Scholarship

This Article develops a paradigm for advancing workplace equality when the problems causing racial and gender under-participation are structural, and the legal environment surrounding diversity initiatives is uncertain. It first analyzes three key dilemmas that have limited the efficacy of prior diversity initiatives: limited capacity to institutionalize change, a legal minefield, and ineffective public accountability. It then offers three related ideas in service of advancing workplace equity through institutional transformation. Although its focus is on higher education, the Article develops an approach with more general applicability. First, it develops the norm of institutional citizenship as a justification and goal for ...


Capital Punishment And Capital Murder: Market Share And The Deterrent Effects Of The Death Penalty, Jeffrey Fagan, Franklin Zimring, Amanda Geller Jan 2006

Capital Punishment And Capital Murder: Market Share And The Deterrent Effects Of The Death Penalty, Jeffrey Fagan, Franklin Zimring, Amanda Geller

Faculty Scholarship

Both legal scholars and social scientists have leveraged new research evidence on the deterrent effects of the death penalty into calls for more executions that they claim will save lives and new rules to remove procedural roadblocks and hasten executions. However, the use of total intentional homicides to estimate deterrence is a recurring aggregation error in the death penalty debate in the U.S.: by studying whether executions and death sentences affect all homicides, these studies fail to identify a more plausible target of deterrence - namely, those homicides that are punishable by death. By broadening the targets of deterrence, these ...


The Cost Of Norms: Tax Effects Of Tacit Understandings, Alex Raskolnikov Jan 2006

The Cost Of Norms: Tax Effects Of Tacit Understandings, Alex Raskolnikov

Faculty Scholarship

Most human interactions take place in reliance on tacit understandings, customary practices, and other legally unenforceable agreements. A considerable literature studying these informal arrangements (commonly referred to as social norms) has a decidedly positive flavor, arguing that many, if not most, of these norms are welfare-enhancing. This Article looks at the less-appreciated darker side of social norms. It combines the analysis of the modern sophisticated tax planning techniques with the existing empirical studies of commercial relationships to reveal a disturbing connection. By relying on tacit understandings rather than express contractual terms, many taxpayers shift some of their tax liabilities to ...


A Case For Civil Marriage, Carol Sanger Jan 2006

A Case For Civil Marriage, Carol Sanger

Faculty Scholarship

There has been a frenzy of legislative activity aimed at nailing down the legal definition of marriage to make sure that there will be no more nonsense about same-sex monograms or same-sex marriage applications. In an effort to slow down the frenzy, and to encourage those within the academy to think harder about the on-going problem of what to do about marriage, Professor Edward Stein has posed a straightforward question: Should civil marriage simply be abolished? In this mini-symposium, Professors Edward Zelinsky and Daniel Crane have provided two answers to his question: yes and yes.

Although I am a Contract ...


Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu Jan 2006

Network Neutrality: Competition, Innovation, And Nondiscriminatory Access, Tim Wu

Faculty Scholarship

The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But ...


The Law And Economics Of Contracts, Benjamin E. Hermalin, Avery W. Katz, Richard Craswell Jan 2006

The Law And Economics Of Contracts, Benjamin E. Hermalin, Avery W. Katz, Richard Craswell

Faculty Scholarship

This paper, which will appear as a chapter in the forthcoming Handbook of Law and Economics (A.M. Polinsky & S. Shavell, eds.), surveys major issues arising in the economic analysis of contract law. It begins with an introductory discussion of scope and methodology, and then addresses four topic areas that correspond to the major doctrinal divisions of the law of contracts. These areas include freedom of contract (i.e., the scope of private power to create binding obligations), formation of contracts (both the procedural mechanics of exchange, and rules that govern pre-contractual behavior), contract interpretation (what consequences follow when agreements ...


Just Until Payday, Ronald J. Mann, Jim Hawkins Jan 2006

Just Until Payday, Ronald J. Mann, Jim Hawkins

Faculty Scholarship

The growth of payday lending markets during the last 15 years, both in the United States and abroad, has been the focus of substantial regulatory attention, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have conflicting purposes – some seek to remove barriers to entry and others seek to impose limits on the business model and those who participate in it. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of ...


After Confidentiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon Jan 2006

After Confidentiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon

Faculty Scholarship

The legal profession has yet to deal with important challenges to the traditional image and practice of business lawyering raised by recent financial reporting and tax shelter scandals. Two issues are particularly important. The first is formalism - the doctrine that only the literal terms and not the underlying purpose of the law are binding. The second is managerialism - the doctrine that conflates the interests of the corporation with those of its managers. This essay argues that a plausible ethic of business lawyering requires a more thoroughgoing rejection of these doctrines than the bar has yet considered. It also suggests that ...